The essential guide to
Alternative
dispute
resolution
Innovative approaches
to problem solving and
dispute resolution
Human Resources
Best Practice Series
Ibec represents Irish
business; home grown,
multinational, big and
small, spanning every
sector of the economy.
The organisation and its sector associations work with government
and policy makers nationally and internationally, to shape business
conditions and drive economic growth. Ibec also provides a wide
range of professional services direct to members.
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THE ESSENTIAL GUIDE TO
ALTERNATIVE
DISPUTE RESOLUTION
Innovative approaches to problem solving and dispute resolution
AUTHORS: Liam Doherty, Managing Director, Ask HR Ltd, and Paul Teague, Martin Naughton Professor of Management,
The Queen’s University, Belfast.
SERIES EDITOR: Mary Connaughton, Head of HR Development, IBEC.
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IBEC HUMAN RESOURCES BEST PRACTICE SERIES
Much of Ireland’s recent economic success
derives from our knowledge-based economy.
Within this context, the management and
development of people remain a critical
component in sustaining Ireland’s economic
success. IBEC is responding to this need by
supporting companies to examine ways to
improve productivity and people
management practices.
The Human Resource Best Practice Series
offers practical solutions for implementing
effective HR practices, explaining the business
case, and re-enforcing the responsibilities of
line managers in relation to ongoing people
management and development. Each guide
brings together leading thinking on the topic,
along with current trends and best practices
from organisations in Ireland.
DISCLAIMER:
This guide is for information purposes only and IBEC assumes no responsibility for any use to which the information may
be put, or for any errors. This guide is not a substitute for specialist employment law or legal advice, where appropriate.
© Copyright Ibec, 2013.
No part of this guide may be reproduced or transmitted in any form or by any means, electronic or mechanical,
or by any information storage or retrieval system without the prior permission of the publishers.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
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BUILDING PEOPLE CAPABILITY
ABOUT THIS GUIDE
In the ordinary course of day-to-day
employment, conflict is, unfortunately,
inevitable. Disputes will arise between
employees and between employees and
management. If ignored or if not properly
dealt with, such conflicts can become
damaging to the working environment and
to productivity. Organisations must,
therefore, be able to settle workplace
grievances fairly and efficiently, otherwise
they may well pay a high cost.
Over the past decade or so we have seen a
transformation of our workplaces. We now
rarely experience the large-scale industrial
confrontations which characterised our
working lives in times past. However, those
who populate the workplace today are better
educated, more sophisticated, more diverse
and more demanding. This is matched by a
transformation in workplace confrontations
from the large scale dispute to those that are
more individual in nature, but probably no
less frequent. Getting to grips with
workplace conflict inside organisations today
is an increasingly important matter, at both
organisational and individual level.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
In recent years, the concept of alternative
dispute resolution (ADR) has dominated the
literature on conflict management and has
become synonymous with innovative, nonadversarial methods of conflict resolution.
ADR techniques such as mediation,
arbitration, peer review boards and internal
ombudsman are now being employed as
alternatives to litigation, and to the state’s
workplace dispute resolution bodies. There is
a growing trend of employers adopting
problem-solving methods which are tailored
to their business, culture and circumstances.
This guide is designed to inform business
leaders and HR professionals as to the
importance of effective internal dispute
resolution procedures in Irish workplaces.
A detailed treatment of the common methods
of ADR is included in addition to practical
information for building effective internal
ADR systems. The case studies from some of
Ireland’s best-known employers give a unique
insight into the realities and practicalities of
operating workplace ADR systems.
In addition to the practical advice and
information provided in this guide, IBEC’s
expertise is available to support members
in dealing with this and other human
resource issues.
Brendan McGinty
Director of Industrial
Relations and Human
Resource Services, IBEC
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“The capacity to resolve workplace
disputes effectively contributes to the quality
of the working environment and has a
significant impact on organisational
performance in terms of reducing days lost,
enhancing productivity and improving
management-employee relations. ”
Minister Michael Martin, T.D.
at the launch of the Labour
Relations Commission’s
Strategic plan 2008 – 2010.
19th March 2008.
www.entemp.ie/press/
2008/20080319b.htm
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CONTENTS
Section 1 Introduction to
workplace conflict
1
...........................
Section 5 Negotiating collective
agreements
25
.........................................
What is workplace conflict? . . . . . . . . . . . . . . . . . . . .1
Negotiating collective agreements . . . . . . . . . . . .25
The rise of ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Advance preparation for negotiation . . . . . . . . .26
International transfer of ADR innovations . . . . . .6
The negotiation session . . . . . . . . . . . . . . . . . . . . . . .27
Case study 4:
The Regional Printers and
Newspapers Association of Ireland . . . . . . . . . . . .8
Section 2 An integrated approach
to effective conflict
management
9
.......................................
Preventing workplace conflict . . . . . . . . . . . . . . . . .9
The role of a workplace conflict
management system . . . . . . . . . . . . . . . . . . . . . . . . .10
Ten steps to implementing
an effective ADR system . . . . . . . . . . . . . . . . . . . . . .10
Section 3 Internal ADR practices
Case study 5:
RTÉ Industrial Relations Tribunal . . . . . . . . . . . . .29
Section 6 Arbitration in collective
employment disputes
31
..............
Examples of arbitration . . . . . . . . . . . . . . . . . . . . . . .31
Arbitration as the final stage
to normal IR procedures . . . . . . . . . . . . . . . . . . . . .31
13
.............
The role of line managers
in conflict management . . . . . . . . . . . . . . . . . . . . . .13
Internal ADR mechanisms . . . . . . . . . . . . . . . . . . . .14
Open door policy . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Peer review boards . . . . . . . . . . . . . . . . . . . . . . . . . .15
Internal ombudsman . . . . . . . . . . . . . . . . . . . . . . .15
Arbitration as an option within
normal IR procedures . . . . . . . . . . . . . . . . . . . . . . .31
Ad hoc arbitration as part of a
proposal to resolve a dispute . . . . . . . . . . . . . . . .31
Arbitration to deal with disputes regarding
the implementation of an agreement . . . . . . .32
Arbitration to deal with disputes regarding
the interpretation of an agreement . . . . . . . . .32
Employee hotlines . . . . . . . . . . . . . . . . . . . . . . . . . .15
Internal facilitation . . . . . . . . . . . . . . . . . . . . . . . . .17
Section 7 Fact finding and mediation
in bullying and harassment
at work
35
Internal mediation . . . . . . . . . . . . . . . . . . . . . . . . .16
Formal grievance procedures . . . . . . . . . . . . . . .16
Employee consultative forums . . . . . . . . . . . . . .16
.....................................................
Mini-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
What is workplace bullying? . . . . . . . . . . . . . . . . . .35
Case study 1:
The Intel open door model . . . . . . . . . . . . . . . . . . . .17
Before initiating an investigation . . . . . . . . . . . . .36
Section 4 The organisational
ombudsman
Case study 6:
The eircom workplace charter . . . . . . . . . . . . . . . .39
21
.......................................
Case study 2:
Massachusetts Institute of Technology . . . . . . . .23
Case study 3:
The Ombudsman for the Defence Forces . . . . . .24
Neutral fact finding . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Section 8 The future of ADR
41
.........................
Recourse to ADR is likely to increase . . . . . . . . . . .41
The deepening of ADR . . . . . . . . . . . . . . . . . . . . . . . .42
Section 9 Resources
43
..............................................
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
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Alternative dispute resolution is an
umbrella term covering a range of initiatives
that are introduced by organisations to
modernise or strengthen workplace conflict
management arrangements.
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INTRODUCTION
TO WORKPLACE
CONFLICT
SECTION ONE
INTRODUCTION TO
WORKPLACE CONFLICT
Key features
Like other social contexts, the workplace is
characterised by constant close human
interaction. For the most part, there is a high
level of cooperation between people, but on
occasions, conflict can emerge. While conflict
at work may be inevitable, there is nothing
inevitable about organisations building
effective procedures to manage it. The
organisational and human costs of inefficient
conflict management processes are
potentially high. Days can be lost due to
industrial action, sickness and absenteeism,
and management-employee relations can
become strained if not embittered.
Disharmony can impede organisations from
succeeding in today’s challenging business
environment. On the positive side, an
organisation that possesses effective conflict
management arrangements is more likely to
have employees who feel they have dignity
and justice at work and are more committed
to the mission of the organisation.
What is workplace
conflict?
Conflict in the workplace is often
blithely talked about as a normal part of
organisational life, but frequently it can be
a traumatic experience for all those involved,
with potentially damaging consequences.
As a result, the effective resolution of conflict
should be a high priority for organisations.
Workplace conflict can be defined as a
disagreement which the parties involved
perceive as a threat to their needs, interests
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
k what is meant by workplace conflict;
k traditional and alternative
dispute resolution procedures;
k international trends and practices
k the satisfaction triangle.
or concerns. Although this definition appears
relatively straightforward, it actually reveals
some of the complexities involved in the
notion of workplace conflict and its
management. Consider the following
terms in the definition:
Disagreement
In a conflict the genuine disagreement and
the perceived disagreement are frequently
not the same, and often the significant
misunderstanding about the nature of the
disagreement aggravates the situation.
Genuine areas of disagreement in a
conflict need to be established so that the
right problems can be solved and the true
needs of the parties can be managed.
Parties involved
Sometimes it is hard to distinguish
between those who are and those who are
not involved in a workplace conflict. On
occasions people are surprised to learn
that they are a party to a conflict. At other
times people are only too eager to become
1
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a party to a conflict even though they may
not be directly involved in the problem.
Invariably people take sides, which may not
only make the solution more difficult, but
also generate further disagreements. Thus,
it is important to contain a dispute quickly
and identify precisely the parties involved.
Perceived threat
In a conflict situation, people frequently
respond to a perceived threat rather
than to a genuine threat, and do not
take an objective view of the situation.
This perception will then influence their
behaviour. Within this context, a key
part of devising a solution to a workplace
conflict is getting the parties to understand
the true nature of the issue.
Dealing with some of these apparently
straightforward concepts reveals the
complexities involved in workplace conflict
and its management. It is not surprising,
therefore, that the satisfactory resolution
of most disputes can prove challenging
and time consuming.
Conflict at work can take various forms,
as highlighted in figure 1. Personal or
professional differences, differing underlying
values, difficulty in adapting to change or
meeting performance requirements are all
potential sources of conflict.
However, conflict probably emerges most
frequently in the course of the day-to-day
functioning of the organisation. Poorly
organised teams, weak management
decisions and contentious organisational
change programmes are examples of this.
At times, ineffective communication may
cause this conflict, but more frequently
it arises due to different or competing
interests in an organisation.
Figure 1 / Potential sources of conflict in the workplace1
PROFESSIONAL
DIFFERENCES
INTERPERSONAL
DIFFERENCES
Opinion differences
Conflicting values
Philosophy differences
Stylistic differences
Lack of knowledge
Misunderstanding
Level of company
Lack of knowledge
Objective differences
Inappropriate behavious
Inaccurate facts
CONFLICT
Poor policy management
Job fit
Competing intrapersonal values
Ineffective leadership
Personal problems
Poor structural configuration
Personality
Programme alignment
Intolerance for difference
Intolerance for change
INDIVIDUAL
UNIQUENESS
2
Role definition
1. Conflict resolution
information source.
http://v4.crinfo.org
Ineffective processes
ORGANISATION
STRUCTURE
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INTRODUCTION
TO WORKPLACE
CONFLICT
Traditional conflict management processes
Negotiated rule-making:
Often called ‘reg-neg’, this involves negotiating the substance as well as the procedures
of any law, rule or regulation before these are made final. This approach originated in the
US, but is increasingly being used in Europe, for example, in the negotiations on the
introduction of the Information and Consultation Directive into Ireland.
Negotiation:
Conducting negotiations through interest-based principles of problem-solving is now
widely regarded as best practice. Interest-based problem-solving seeks to resolve disputes
by identifying interests and offering options which address the concerns of those involved
in resolving the problem.
Facilitation:
The use of a neutral third party to help the participants in a dispute to conclude a
satisfactory resolution. The facilitator has no authority to impose a solution: their role
normally involves improving the flow of information in a meeting between parties in
a dispute or in another decision-making process.
Mediation:
A voluntary process in which a neutral third party who is acceptable to the disputants
assists the parties in resolving a problem. Particular emphasis is placed on exploring options
for resolution which focus on the future relationship of the parties. The neutral mediator is
neither a decision-maker nor an expert adviser. Mediation is a private, non-binding conflict
management process.
Conciliation:
This approach is normally used in a dispute where the participants are unwilling to
meet face-to-face. The role of the conciliator is to engage in a form of shuttle mediation
or negotiation.
Fact finding:
Where a third party, often but not always a technical or subject matter expert, investigates,
documents and interviews witnesses to determine the facts of a dispute and makes a
finding or conclusion. The conclusions are usually non-binding.
Neutral evaluation:
This is a process in which the parties obtain from an experienced (and possibly expert)
third party a non-binding, reasoned evaluation of aspects of the dispute and renders an
advisory opinion on how the matter may be successfully addressed. The opinion or
assessment of the third party normally has persuasive value.
Arbitration:
This is a conflict management process in which disputes are submitted to a neutral
arbitrator or arbitration panel. The parties present evidence and arguments and then
the arbitrator/s reach a decision on how the dispute should be settled. Usually this
decision is binding on the parties.
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The rise of ADR
ADR is an important theme in the study of
workplace conflict. It is normally defined as a
range of procedures that serve as alternatives
to litigation for the resolution of disputes,
generally involving the assistance of a
neutral third party. However, established
methods of reaching settlements are at the
heart of many ADR procedures.
ADR is probably best considered as an
umbrella term covering a range of initiatives
that are introduced by organisations to
modernise or strengthen workplace conflict
management arrangements.
For the most part, the origins of ADR
practices lie in American human resource
management. These practices emerged as a
result of efforts by organisations to avoid
costly litigation battles with disaffected
employees. These were devised mostly for the
non-union sector. In practice, organisations
have tended to pick and mix from the suite
of options outlined in table 1 so that the
conflict resolution system fits with other
parts of their organisational architecture.
(For the full spectrum of conflict resolution
processes, see table 3 page 12.)
Table 1 / ADR workplace resolution processes
4
Ombudsman
A designated neutral third party assigned the role of assisting the resolution of
a grievance or conflict situation. The activities of an ombudsman include factfinding, provision of counselling and conciliation between disputing parties.
Highly-developed persuasion skills are the key asset of a good ombudsman.
Mediation
A process under the stewardship of a third party designed to help those
involved in a dispute reach a mutually acceptable settlement. The third party
has no direct authority in the process and is limited to proposing or suggesting
options that may open a pathway to a mutually agreeable resolution.
Peer review
A panel composed of appropriate employees, or employees and managers,
which listens to the competing arguments in a dispute, reflects upon the
available evidence and proposes a resolution. Whether or not the decision
of the panel is binding varies across organisations.
Management
review boards
Sometimes called dispute resolution boards, these panels are solely composed
of managers and have more or less the same remit as peer reviews. Again, the
decision of the panel may or may not be final.
Arbitration
A neutral third party is empowered to adjudicate in a dispute and set out a
resolution to the conflict. This may or may not be binding depending upon the
prevailing labour legislation and the design of the arbitration process.
Mini-trial
In a mini-trial, sometimes called an exchange of information, the parties
explain their respective cases to a neutral adviser who then tells them of the
respective strengths and weaknesses of their case. The adviser can consider
expert views and will lead the parties to a better understanding of the issues
and merits of their respective case. The parties are then expected to enter into a
mutual discussion with a view to arriving at a settlement.
Partnering
Partnering is a relationship in which the stakeholders work together as a
unified team toward mutual goals, rather than individual or party-specific
interests. Partnering lets both parties interact and communicate effectively and
produce a better result at lower cost and with less conflict.
Facilitation
The use of a neutral third party to help the participants in a dispute reach
a satisfactory conclusion.
Conciliation
This approach is normally used in a dispute where the participants are
unwilling to meet face-to-face. The role of the conciliator is to engage in
a form of shuttle mediation or negotiation.
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A multinational company has the
following elements in their
comprehensive ADR system:
k an open door policy that encourages
an employee to discuss a problem
with their supervisor or manager
in confidence and without fear
of retaliation;
k an employee hotline that offers
the opportunity to speak with an
advisor on an anonymous basis to
discuss the available options for
solving a problem;
k a conference which involves an
employee discussing the problem
in a formal setting with a
representative of the company
to work out a procedure to solve
a grievance or dispute;
k a mediation facility to help solve
the dispute. Either party can
request this alternative, which
involves obtaining the services
of a trained external mediator to
handle proceedings. If mediation
is instigated, each party is obliged
to participate, but the process is
non-binding;
k an arbitration facility is available
if the dispute has not been resolved
at an earlier stage. The employee
can elect to make the process
binding. The procedure is formal
and involves an external arbitrator
receiving written submissions from
the various parties involved and
listening to evidence in a hearing.
If an employee grievance is upheld,
the arbitrator can make an award
that is equivalent to any of the
options open to a court of law.
INTRODUCTION
TO WORKPLACE
CONFLICT
An example of a
comprehensive,
multi-layered dispute
resolution programme
According to McCabe, 19882, the scope
of ADR mechanisms differs across
organisations. Some companies confine
the use of the ADR options to particular
groups of employees, certain sections of
the company, or an identified list of
employment-related matters. In large
companies with multiple sites, some
unionised employees may be covered by
collective bargaining agreements that could
include written procedures for the handling
of disputes and grievances while other
employees may be dealt with under
an ADR system. Overall, ADR procedures vary
considerably in complexity and purpose.
The literature assessing the impact of ADR is
still relatively underdeveloped. Much of what
has been written either focuses on best
practice rules for the dissemination of such
arrangements, or debates the implication of
ADR for workers’ rights (Rowe 19933). ADR
procedures have been found to reach full
potential under the following conditions:
k full support of senior management;
k active participation of employees in
the design of the ADR process;
k rapid activation of ADR procedures
in a dispute;
k observation at all times of due process
to maintain credibility and effectiveness;
k monitoring of outcomes to enable
changes in practice and prevention of
similar disputes in the future.
It is very important that organisations
recognise the broader potential of ADR
arrangements because, if successfully
employed, they may permit an organisation
to understand the shortcomings and risks
associated with particular business practices
and processes (Weston and Feliu 19984).
Susskind et al (1999)5 identified a cumulative
dynamic that is associated with the
effectiveness of ADR procedures. Essentially,
reputation drives this dynamic: the more ADR
procedures are able to settle grievances the
more respect and acceptance they gain from
employers, management and employees.
Similarly, if mediators obtain settlements
that restore, and even help to transform,
2. McCabe, D. M. (1988).
Corporate non-union
complaint procedures
and systems.
New York: Praeger.
3. Rowe, M. (1993).
“The corporate
ombudsman: an
overview and analysis”,
in Breslin, J. and Rubin, J.
(eds), Negotiation theory
and practice. Cambridge,
MA: Harvard.
4. Weston, A. and Feliu, A.
(1998). Resolving
employment disputes
without litigation.
Washington, D.C.: Bureau
of National Affairs.
5. Susskind, L., McKearnan,
S. and Thomas-Larmer, J.
(1999). The consensus
building handbook.
Thousand Oaks, CA: Sage.
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professional and working relationships
between disputing parties then they will
enjoy enhanced prestige and status
(Gallanter, 19986). As a result, they become
better placed to resolve disputes in the
future. This dynamic is not easily obtained,
however. Expedient, short-sighted or
inappropriate actions to resolve workplace
conflicts may cause the conflict resolution
system to lose credibility.
Management System (ICMS) Directive8,
which prescribes the common criteria that
every ICMS must have.
International transfer
of ADR innovations
k build strong relationships;
Like so many other aspects of human
resource management innovations that
first emerged in the US, ADR practices are
being embraced in other countries. ADR has
been adopted in countries such as Ireland,
Canada and the UK as part of encouraging
more consensual methods of resolving
workplace problems.
k improve communication;
The spread of ADR has increased awareness
among organisations of the importance
of putting multiple channels in place for
the resolution of workplace conflict. These
can be used flexibly to address problems at
the lowest level possible. Thus, outside the
US, a broader interpretation is given to
alternative dispute resolution to the point
that it has been suggested that the term
be renamed “appropriate dispute resolution”
(Doyle 20007).
Canada has probably done the most on
ADR outside the US. A range of interesting
initiatives have been launched on the matter,
one of which is the Canadian Informal
Conflict Management System. In 2005
legislation was passed requiring each deputy
head within a government department or
agency to establish and promote an informal
conflict management system. Each deputy
head was obliged to consult employees and
trade unions so that the system would be
tailored to the needs, circumstances and
culture of the organisation. At the same time,
in an effort to obtain a degree of uniformity
across departments and agencies, the
government developed an Informal Conflict
6
The Directive states that an ICMS “is a
system for dealing with conflict, which
incorporates alternative dispute resolution
methods into existing rights-based
structures to form an integrated, multioption conflict management system”.
It suggested that an effective ICMS will
help departments and agencies to:
k improve morale;
k increase productivity;
k build confidence in management;
k provide both tangible and
intangible savings;
k provide a fair, flexible, fast and effective
way of handling workplace disputes.
The Directive set down a number of core
principles for an ICMS:
k confidentiality;
k impartiality;
k no retaliation or reprisal;
k respect for collective bargaining,
statutory and workplace rights;
k management of the system by a
senior ICMS officer.
Several departments have established an
ICMS. In the Department of Justice, they first
carried out a diagnostic assessment to gain
an understanding of the nature, incidence
and resolution of workplace conflict in the
organisation. Questions asked included:
k what are the Department’s culture,
values, goals and needs?
k how is conflict dealt with currently?
k what rights-based (grievance) and
interest-based (mediation) procedures
are currently in place?
6. Gallanter, M. (1998).
“The quality of
settlements”, Journal
of Dispute Resolution,
1998, 10 (2), p321-339.
7. Doyle, M. (2000).
Advising on ADR:
the essential guide to
appropriate dispute
resolution. London:
Advice Services Alliance.
8. ICMS project overview.
www.ainc-inac.gc.ca/
ps/cori/icms/prov_e.html
k who is responsible for handling conflict?
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bargaining agreement or through a statutory
mechanism. Every effort has been made to
integrate an ICMS with existing formal
processes for grievance resolution.
The new ICMS received the backing of all
relevant parties as the preferred approach
to prevent and resolve workplace disputes.
A wide range of processes and procedures
was established including mediation, factfinding, early neutral evaluation, facilitation,
conciliation and arbitration. The use of ICMS
systems is entirely voluntary, and employees
have the right at any stage to opt to resolve
their problem either through a collective
As the concept of ADR has evolved, it has
broadened in scope and provides for options
that can be tailored to the nature of the
problem. Generally, ADR procedures are
voluntary, confidential and impartial.
Sometimes ADR services aim to complement
existing formal grievance and complaint
processes, while at other times an ADR
dimension is introduced into formal
grievance and complaint processes.
Procedural interests relate to the process
Figure 2 / The satisfaction triangle
pr
oc
ed
ur
al
Substantive interests relate to the issue
at hand and the outcome being proportional
to the nature of the problem, without the
use of disproportionate resources in reaching
the solution.
This Canadian example has dispelled some
of the myths around ADR. The ICMS initiative
shows that an entire spectrum of ADR
procedures can be introduced into a unionised
environment in both the public and private
sectors in a manner that complements
existing collective bargaining procedures.
l
ica
og
ol
ch
psy
An organisation can be considered to have
an effective conflict management system
if it satisfies the substantive, procedural
and psychological interests of the parties
involved in the conflict. These interests are
interdependent; satisfying the requirements of
all three is known as the satisfaction triangle.
INTRODUCTION
TO WORKPLACE
CONFLICT
After this assessment, consultation occurred
between management, trade unions and
other relevant stakeholders to design an
appropriate ICMS. A policy statement was
developed which explained that the goal in
implementing this system “is to prevent
disputes from arising wherever possible and
whenever they do arise to facilitate their
resolution informally, and quickly, while
preserving the right of all users to seek
assistance through existing formal dispute
resolution mechanisms at any time.”
substantive
itself. First, the conflict management system
should have a set of decision-making and
procedural rules that are fair. Second, these rules should be drawn up and communicated
in advance. Finally, the rules should be applied in a transparent and consistent manner.
9. Sheppard B. H., Lewicki, R.
J. and Minton, J. W. (1992).
Organisational justice:
the search for fairness in
the workplace. New York:
Lexington Books.
Psychological interests relate to the extent to which parties to a conflict feel that the
procedures used to address it, and the treatment they received during its course, were fair.
The importance of this aspect of conflict resolution is sometimes underestimated. Employees
regard the manner of their treatment during the resolution of a dispute as equally, if not
more important, than the actual outcome (Sheppard et al 19929).
All three of these interests have to be addressed for a workplace conflict to be settled
satisfactorily. Failure to do this will allow problems to surface again. Effective conflict
management systems are very good at ensuring that people do not walk away from a
dispute feeling that they have lost.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
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“There can be no room for complacency.
A culture of co-operation and participation
between management and workforce
must be maintained at the enterprise level
and the Government will continue to
work to support this effort.”
Minister for Labour Affairs,
Billie Kelleher T.D. commenting
on the statistics which
showed a record low number
of workdays lost to industrial
disputes in Ireland in 2007.
28th February 2008.
www.entemp.ie/press/2008/
20080228n.htm
8
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AN INTEGRATED APPROACH
TO EFFECTIVE CONFLICT
MANAGEMENT
AN INTEGRATED
APPROACH TO
EFFECTIVE CONFLICT
MANAGEMENT
SECTION TWO
Key features
An effective integrated conflict management
system helps to foster an organisational
culture based on trust and cooperation, and
encourages the resolution of conflict at the
lowest level. It provides multiple entry points
which employees can readily identify and
access, as well as multiple options for
addressing conflict. Middle and front line
managers are encouraged to interact with
employees in a supportive manner so that
they can identify and, if necessary, solve
problems quickly and fairly.
Preventing
workplace conflict
Preventing workplace disputes is as
important as resolving problems when
they do arise. The first step an organisation
can take is to foster a culture conducive
to dispute resolution/prevention. Such a
culture will be founded on trust and will be
characterised by:
k belief in the possibility and desirability
of resolving conflict;
k tolerance of and respect for others
and their ideas;
k valuing ongoing relationship
improvement;
k belief in the desirability of
collaborative outcomes;
k strong commitment to interest-based
problem-solving procedures;
k willingness to champion effective
conflict management.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
k mechanisms to prevent
workplace conflict;
k the features of an integrated
conflict management system;
k the spectrum of conflict
management processes.
Secondly, practices and procedures
designed to settle workplace conflict
must be embedded within a wider human
resource management system. This will
make organisations better equipped to
resolve disputes, whereas a poorly organised
human resource management system may
itself be a cause of conflict. In practice, this
means that policies and practices to manage
the employment relationship need to be
consistent with the law and equitably
implemented. Section 7 demonstrates
how this is applied in relation to addressing
bullying and harassment difficulties in
the workplace.
These preventative practices tend to be
evident in organisations which are proactive
in promoting the values of collaboration,
personal development and involvement. This
approach will bolster social capital (see table
2) which underpins organisational success as
well as effective conflict resolution.
9
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Table 2 / Features of organisational social capital
Empowerment
Employees feel that they are listened to; are involved in
processes that affect them; can take actions to initiate changes
in the organisation.
Participation
Employees have a voice in decision-making.
Common purpose
Employees cooperate with each other through teams and other
formal and informal groups.
Reciprocity
Employees and management cooperate to support one another
for mutual gain. There is an expectation that help will be given
to or received from others when needed.
Collective norms and values
Employees and management share common values and
understandings, as well as norms of behaviour.
Trust
Employees feel that they can trust both their co-workers and all
levels of management.
Well-being
A range of polices and practices are developed by the
organisation to support the well-being of employees.
Belonging
Employees have a sense of belonging linked to their job, their
co-workers and the organisation.
The role of a workplace conflict management system
It is naïve to think that workplace conflict
will not emerge even in the best-managed
organisations. A conflict management
system provides a set of interrelated
procedures that can be used separately or
together to settle workplace disputes and
problems quickly and fairly. Creating an
integrated workplace ADR system is not an
exercise to be undertaken lightly as it
requires multiple stakeholder commitment
to the process and ongoing support. For a
system to be effective, it has to address the
following factors:
k conflict level: as the level of conflict
increases, the likelihood of a
settlement decreases;
k complexity of dispute: some disputes are
clearly more difficult to settle than others;
k commitment of the parties to
conflict resolution;
k equity of access to resources for disputant
parties: this is essential to maximise the
chances of reaching a satisfactory
settlement. If employees feel that
management has greater access to
information or resources, they may be
suspicious of the process, thus reducing
the possibility of a settlement.
k conflict competency: the competency
of those involved in the conflict
management process strongly influences
the outcome of a workplace conflict.
k visibility of problem solvers: discretion
is considered a prerequisite to the
successful resolution of disputes.
Ten steps to implementing an effective ADR system
1. Define the strategic opportunity
Why must you change the status quo? It is
critical to identify the impetus for change
in the organisation. It could be a triggering
event such as a costly dispute, a finding of
unfair dismissal, or feedback from exit
interviews. It is important to articulate the
business case in specific terms, such as
10
reduced financial exposure, lower risk of
litigation, improved working relationships.
Introducing a new ADR policy may be a
relatively straightforward paper exercise
with little dividend, whereas putting a
new ADR system in place is a significant
challenge but carries a wider range of
potential benefits.
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2. Building leadership commitment
3. Form a design team
It is important to have a design team
comprising representatives from senior
and front line management operations,
HR and the wider workforce. It may also be
useful to have an external consultant or
facilitator to work with the team. The team
has to look at what change process model
will be employed and which essential skill
sets and perspectives are required.
4. Diagnosing the current
internal situation
Depending on the available data, the
design team may have to commission
research. The capacity of the existing
system to handle problems and disputes
needs to be established. What are the
costs of the current system? Where is the
organisation most at risk? What is the
case for change? Sources of information
may include workplace surveys, exit
interviews, previous conflicts, absenteeism
and employee turnover rates.
5. External research and benchmarking
This entails looking externally to
organisations to learn from their
experiences and best practice. This can
include IBEC, the Labour Relations
Commission Advisory Service or
specialist experts in ADR. Site visits
to other organisations that have
experience of introducing and maintaining
a comprehensive ADR system are
particularly helpful.
6. Employee focus groups
Learning from internal stakeholders is a
commonly overlooked step, but is essential
for subsequent commitment to any
recommendations from the design team.
Choose a qualified facilitator, be clear
about the goals, define the questions to
be put to employees and select the mix of
employees for each group.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
7. Design the system
There is no single ideal model that will
work in all circumstances, but every design
needs to be aligned with the objectives
and culture of the organisation. The design
team will have to determine the scope of
the system, find the correct balance
between interest-based and rights-based
options and determine the essential steps
and whether they will be voluntary or
mandatory. The question of who
determines the route, and whether staff
can move between different options must
also be addressed. It will be a challenge to
describe the new system to employees in
clear terms. The team will need to consider
whether the system is to be introduced on
a pilot or incremental basis or whether it is
capable of being introduced wholesale.
AN INTEGRATED
APPROACH TO
EFFECTIVE CONFLICT
MANAGEMENT
As with all change initiatives, support
from the leadership team is essential.
A workshop with senior management to
identify the opportunity and map the key
stages can be helpful. A project champion
or sponsor from this group is necessary to
oversee the process, provide support and
ensure resources are allocated.
8. Pre-launch
Once the design elements are finalised,
metrics have to be defined to enable the
organisation to determine whether the
system is meeting its intended objectives.
Identifying who will be responsible for the
system, ensuring it is properly resourced
and has the capacity to handle any
potential resistance points must also be
addressed along with commitment from
the leadership team.
9. Launch the system
The key considerations here include
marketing, communications and training
staff in the operation of the new system.
The system needs to be clearly
communicated and promoted from the
outset. Front line managers need to be
given appropriate training to ensure
support for the system and to operate it.
Explanatory documentation should be
developed and widely circulated.
10. Assessment
The new system will have to be monitored
at appropriate intervals and evaluated
from the perspective of key stakeholders
after an initial 12 months. Progress against
the original metrics should be evaluated
to enable the organisation to determine
whether the system is meeting its
intended objectives. It may be prudent to
consider the use of an external consultant
to undertake this exercise on behalf of
the design team.
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Building social capital, problem-solving,
mediation and arbitration are among the
variety of methods and practices that can be
used to prevent or solve problems at the
workplace. The various tools to address
conflict at work constitute a range of
potentially mutually reinforcing procedures
(see table 3). While organisations will
package conflict management procedures in
distinctive ways, it is important to ensure a
high degree of integration between the
various procedures. Integration is more likely
to result in the system being effective and
this is especially true when the conflict
management procedures are consistent with
the broader HR philosophy.
Table 3 / Spectrum of conflict management processes
Prevention
Problem-solving
Facilitation
Fact-finding
Advisory
Adjudication
Organisational
mission
promoting
effective conflict
resolution
Conflict coaching
Facilitation
Negotiation
Partnering
Complaint
investigation
Early neutral
evaluation
Interest-based
dispute
settlement
strategies
Conciliation
Fact finding
Mini-trial
Peer review
panel/
adjudication
(binding)
HRM values
of collaboration
and problemsolving
Sophisticated
communication
systems
Relationship
management
Internal ‘neutral’
people and
procedures
Mediation
Non-binding
arbitration
Ombudsman
(non-binding)
Ombudsman
(non-binding)
Team problemsolving sessions
Peer review
(non-binding)
Employee hotline
Arbitration
Ombudsman
(binding)
Tribunal panel
Management
review boards
Consultative
forum
Core competency
in conflict
resolution
Rewards for
management
problem-solving
efforts
Open door
practice
12
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SECTION THREE
INTERNAL ADR PRACTICES
Key features
INTERNAL ADR
PRACTICES
While an integrated conflict management
system is likely to have both internal
and external processes to deal with
conflict, there is an increasing interest
and reliance on internal processes to
deal with issues. This section focuses on
the key internal mechanisms that are
available to organisations, including the
provision of in-house options that may
previously have been provided only
externally (e.g. facilitation and mediation).
k the important role of line
managers in conflict management;
k the range of internal ADR
mechanisms;
k case study of Intel’s open
door model.
Well-structured internal dispute resolution
systems can create a positive sense of justice
in the workplace, thus serving to improve
the quality of working relationships in the
organisation, reducing employee turnover
and absenteeism and improving work
performance and job satisfaction (McCabe
198810). However, the first consideration is
the role of line managers.
The role of line managers
in conflict management
A conflict management system is not simply
about putting formal policies and procedures
in place. Giving front line managers
responsibility for preventing and resolving
workplace disputes in the first instance is
probably the most effective way of managing
employee disputes and maximising the use
of informal approaches to conflict
management. Trying to resolve workplace
conflict by formal methods alone would lead
to the system being overly bureaucratic.
Thus, informal methods to address disputes
and problems at a local level need to be
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
developed. Of course, managers will require
training and expertise to perform such a role,
and this responsibility has to be positioned as
an integral part of their people management
duties. The ability of line managers to
identify problems and detect employee
issues are fundamental to the social capital
within the organisation.
10. McCabe, D. M. (1988).
Corporate non-union
complaint procedures
and systems.
New York: Praeger.
Coaching and mentoring is one mechanism
which provides line management with the
capability to identify problems and will also
help employees develop their skills and
competences. Line managers are the lynchpin
of these supportive practices. As set out in
figure 3, the coaching and mentoring of staff
involve managers engaging in an on-going
three pronged process of observation,
discussion and agreement.
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Figure 3 / The dynamics of coaching
and mentoring
Fundamental skills
for managers
Communication
DI
OBSE
R
USS
SC
VE
Managers must communicate clearly to
avoid people misunderstanding what they
have said. They must not shy away from
telling employees if there is a problem with
their performance or behaviour, although
this should be done diplomatically. Good
communication skills are an important part
of resolving conflicts.
Listening
AG R EE
Managers that successfully problem-solve
demonstrate active listening by being both
attentive and empathetic.
Clarify
Another important way line managers
minimise the emergence of workplace
conflict is by engaging in sense-making
activity in the organisation. Sense-making
refers to the way in which managers build
an understanding of the strengths and
weaknesses of the organisation and its
employees. It involves managers acting
simultaneously as influencing agents and
interpreters of events. High performing
managers are very successful in this regard.
Firstly, it involves identifying those activities
and processes that encourage trust and
cooperation, and using this knowledge to
create an environment in which conflict is
less likely to occur. Secondly, it involves
making early, effective interventions to stave
off conflict so that potential problems are
resolved early.
Managers should ask questions to clarify
different aspects of the problem and to
make sure that they correctly understand
the other person's perspective at both a
factual and emotional level.
Coaching and mentoring
Managers must integrate their
communication skills to support
employees to identify and resolve
problems, while encouraging,
challenging and motivating them.
Brainstorming
The first step managers should take in
problem solving is to come up with as
many ideas as possible. This involves
suspending judgement for the duration.
Find a fair solution
Managers should evaluate all possible
solutions from an objective, unbiased
standpoint, using fair criteria to judge each
idea, considering the perspectives of a
number of people, and relying on reason
not emotion.
Internal ADR mechanisms
Open door policy
An open door policy means that when
employees have a concern they should first
approach their immediate supervisor/
manager for an informal discussion and seek
to resolve the issue. It has to be part of a
philosophy of open communication. When
the employee is not satisfied with the
response to a stated concern, the company
will permit an escalation to progressively
higher levels of management, sometimes
with the chief executive or chairman serving
as the final arbiter.
14
The advantage of an open door policy is that
it enhances the direct relationship between
an employee and their manager, and the
company has a number of opportunities to
ensure that policies are correctly followed.
Due to its relative informality, it can be
difficult to monitor and it may lead to
employees being reluctant to progress
matters to the highest levels in the
procedure. A policy will normally spell out
the time frames for the company’s response.
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Peer review boards
General Electric is considered to be
the pioneer of peer review boards. Under
this arrangement, an employee can appeal
the grievance to a panel normally
comprising three fellow non-management
employees and two managers. The panel
collects all evidence and reviews policies
and precedents before making a final and
binding decision by secret ballot of panel
members where the majority decision
rules. Consequently, a peer review panel
has the power to reverse a management
decision up to and including termination.
At the Marriott International, any employee
has the right to appeal any management
decision to a randomly selected fivemember employee peer review panel that
has full power to reverse or modify a
manager's decision on such matters.
A peer review board should not be confused
with peer review within a performance
management process, whereby team
members give one another feedback on
their performance.
Peer review boards will typically comprise
an unequal number of non-management
and management representatives but could
also comprise equal numbers of both or an
equal number supplemented by an external
independent nominee. The peer review
board mechanism:
1. underlines the need to recruit and develop
good quality line managers who will stand
over their decisions;
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
2. makes managers more conscious of their
actions and decisions in relation to
discipline and promotion;
3. changes how people relate to one another
and how they make decisions;
4. helps eliminate a “them and us” mentality;
5. gives an opportunity for management to
show they trust employees;
6. empowers employees to contribute to
conflict resolution and decision-making;
7. enhances employee perceptions of
fairness when they are a peer majority
on the panel;
INTERNAL ADR
PRACTICES
A peer review board comprises a panel of
employees and managers who consider a
dispute or complaint and determine the
outcome. The organisation can limit the
authority of the panel to certain disputes or
particular policy breaches and the status of
the outcome can vary from non-binding to
binding on one or both parties. The panel
members will need appropriate training in
interpreting company policies and in
conducting hearings and decision making.
In workplaces where there is already a great
deal of trust, a peer review panel can be
extremely effective.
8. requires that employees who participate
in peer review panels receive adequate
training in order to effectively serve as
members, understand the boundaries,
their obligations and how to frame
recommendations correctly.
It is important to note that the decision of
a peer review board to correct an earlier
managerial decision can be a humbling
experience for the manager involved.
Internal ombudsman
The role of the organisational ombudsman
is dealt with in more detail in section 4.
The ombudsman reviews complaints,
interviews complainants and issues
recommendations to the management or
board and the complainant. The status of
the recommendation can range from binding
to non-binding on one or both parties.
Employee hotlines
Employee hotlines are used in a variety of
contexts to deal with issues that may arise
for employees during the course of their
employment relationship.
k A HR hotline gives employees access
to a member of the HR department
to deal with routine or emergency
queries. It may be provided on an
ongoing basis or during a specific
event, e.g. a redundancy programme,
workplace dispute or other emergency.
k A whistle blowing hotline provides
employees with an additional way to
report possible incidents of fraud, waste,
or abuse in the organisation. Increasingly,
organisations are introducing hotlines to
provide for the confidential or anonymous
receipt of information and for employees
to raise concerns.
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k An employee assistance programme is a
confidential service designed to connect
employees (and their eligible dependents)
with experienced counselling professionals
for help with personal problems, typically
at no cost to the employee.
Internal mediation
A number of companies in Ireland have
developed a pool of trained internal mediators.
They may be from within the HR department,
line managers or other employees who are
interested in mediation. This process is
designed to help those involved in a dispute
reach a mutually acceptable settlement, taking
account of the future relationship of the
parties. Mediators have no direct authority in
the process and suggest pathways to a
mutually agreeable resolution.
The individuals themselves have to agree to
enter a mediation process, and a set of ground
rules are established for the process. The
outcome is confidential to the parties involved.
Most mediation processes involve the
following steps:
(i)
the mediator meets both parties, either
together or separately, to explain the
process, gain their cooperation and agree
the ground rules; some mediators choose
to put this into a document for clarity;
(ii) both parties meet together with the
mediator and each explains what they
think the disagreement is about, how
it has affected them, what they see as
the issues to be addressed, and offer
possible solutions;
(iii) the mediator assists the parties to ‘move
on’ by developing options to resolve the
matter between them;
(iv) the options are examined for suitability
and the best one is chosen. The parties
agree that this will resolve their dispute
and the agreement is written up for
both to sign.
Formal grievance procedures
A formal dispute resolution or grievance
procedure will be set out in the contract,
employee handbook or company union
agreement and provides for a series of stages
which are used if a matter is not resolved
through an earlier informal route. The stages
generally involve:
16
1. employee and immediate manager.
2. employee (and work colleague,
representative) and next level manager.
3. employee (and work colleague,
representative) and senior management/HR.
In a unionised company it may then move to
external points of referral, such as:
A. Labour Relations Commission
Conciliation Conference or Rights
Commissioner Hearing.
B. Labour Court hearing and recommendation.
In a non-union company, the final stages
are predominantly internal, such as:
A. employee (and work colleague)
and senior management/HR and
internal ombudsman.
B. employee (and work colleague,
representative) and senior management/
HR and external ombudsman.
C. employee (and work colleague,
representative) and senior management
representative from head office, or
another site.
The key principle is to resolve issues as early as
possible and close to their point of origin. There
may be circumstances where the initial parties
are too emotionally involved in the case and
require assistance, including the objectivity of a
subject matter expert, to assist in resolving the
case. Occasionally, the immediate manager may
be the source of the problem and then it is
advisable to allow employees to proceed to the
next level. Senior managers and HR staff need to
ensure that the primacy of the direct relationship
between the manager and their employees is
maintained by referring any grievances back to
the appropriate level. This includes resisting any
attempts by employee representatives to become
involved at the initial stage.
Employee consultative forums
Employee consultative forums or partnership
groups are often used as part of a wider
process of engagement with the workforce
or by companies to deal with their legal
obligations under the Employees (Provision of
Information and Consultation) Act, 2006.
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The forums vary in composition and terms of
reference, but will typically have a forwardlooking focus dealing with developments and
challenges facing the organisation. They may
support or sponsor project teams to examine
particular issues and report back within a
defined timeframe.
Internal facilitation
An organisation may seek to develop an
internal facilitation capability to deal with
issues before they are formally referred to an
external third party. This option has been a
feature in larger, unionised establishments,
usually as part of a partnership initiative. An
Irish example is the Health Services National
Partnership Forum, where a team of facilitators
assists in the resolution of issues that might
otherwise be addressed through traditional
collective bargaining.
CASE STUDY ONE
The Intel open door model
The Intel Ireland campus at Leixlip, Co. Kildare
is the company’s only manufacturing site in
Europe and currently Intel’s 4th largest
manufacturing site overall. Since 1989, the
company has invested over 6 billion Euro in
turning the 360-acre site into the most
technologically advanced industrial campus
in Ireland. It employs over 5,000 people and is
home to two semi-conductor wafer
fabrication facilities and the centre with
global responsibility for R&D,. A further 150
are employed at a facility in Shannon.
A mini-trial is a relatively new device for the
resolution of disputes and has nothing to do
with a criminal or other trial. It can be initiated
by either party to the dispute. Generally, one
neutral adviser is appointed to hear the dispute
between the parties, appointed by mutual
consent. The neutral adviser generally
possesses special legal or technical knowledge
and experience about the subject matter.
Each side explains their respective case and then
the adviser discusses the nature of the dispute
with them and any experts. He/she advises on
the respective strengths and weaknesses of
each side, the aspects of the case which are
reasonably clear and those which are uncertain.
This process helps the parties to gain a better
understanding of the issues and the merits of
their respective case. The parties are then
expected to enter into a mutual discussion with
a view to arriving at a settlement. The neutral
adviser only assists in such discussions as a
facilitator, and not as a judge of the dispute.
The mini-trial terminates when the parties
reach a settlement or the neutral adviser
declares that further efforts through mini-trial
are no longer justified.
INTERNAL ADR
PRACTICES
They can be a useful additional voice and
sounding board for ideas and initiatives, but
should not become the principal means through
which staff are informed and consulted - rather,
they should support or supplement direct
employee/line manager engagement.
Mini-trial
The open door model
The Intel open door model is essentially a
four-stage process for resolving any workrelated issue involving Intel employees in
Ireland. The foundation for the model is the
primacy of the direct employee/line
manager relationship, and the system
operates to support and enhance this.
The process should also be viewed in the
context of a wider and sophisticated system
of processes and supports that are available
in the organisation.
One such mechanism is the “Ask ES”
(Employee Services) facility, which allows
all employees to direct general or routine
queries to a helpdesk and/or access
additional support through the company
intranet. All Intel HR policies, procedures
and associated guidelines are readily
available to employees. A clear benefit of
this process is that it allows employees to
follow up issues in real time and get
answers to questions themselves rather
than waiting for others to respond.
continued>>
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There are four stages in the Intel open
door model.
to use it in advance of the informal
conversation with their manager. There
is a clear expectation that managers will
seek to address the issue and resolve it if
possible in a timely manner. The line
manager will document their response to
the employee and the vast majority of
cases are resolved at this level.
Level 1
Described as “the informal level”, at this
stage an employee raises an issue or
concern with their immediate manager.
A self help template document is available
to enable the employee to clarify the issue
for the benefit of themselves and their
manager. This asks about the expected
outcome(s) from the employee’s
perspective. While not a mandatory
document, the employee is encouraged
Level 2
This is the start of the formal open door
process. If the employee is unhappy with
the outcome at Level 1 they can escalate it to
the next level of line management. Here the
manager and the employee will be coached
focus is on
“The
resolving the vast
majority of issues at
the first level which
serves to support
and enhance the
primary relationship
which is that
between manager
and employee. This
is key to maintaining
the credibility of
the model.
”
Eamonn Sinnott, F24
Plant Manager
EMPLOYEE ISSUE/GRIEVANCE RESOLUTION PROCESS
Ask ES for
HR queries
Employee
has an issue
LEVEL 1
EMPLOYEE SELF HELP
Employee
must
document
issue/concern
using the
“Employee
Self-Help
Template”
Employee
must go to
their Sup/Mgr
with
documented
issue/concern
Sup/Mgr
must address
the
issue/concern
Sup/Mgr
must
document their
response
using the
“Manager
Response
Template”
HR SUPPORT IN HIGH RISK/
HIGH IMPACT CASES
Issue resolved/
plan agreed
Issue not resolved
LEVEL 2
Manager
is coached and
advised by HR
Employee
is coached and
advised by HR
Open door
investigation
carried out
Substantiated
issue resolved,
plan is agreed
Not substantiated
LEVEL 3
Substantiated
issue resolved,
plan is agreed
Not substantiated
LEVEL 4
18
Appeal initiated investigated by
factory manager
or HRLI
Escalated to
plant manager final appeal
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Level 3
If the matter remains unresolved, the
employee may appeal the outcome to the
next level of line management or to a
member of the HR Legal Investigation Team
(HRLI) at their discretion. It is important to
note that HRLI does not report directly to
local site management.
Level 4
The final point of appeal is to the Plant
Manager and only in exceptional
circumstances will cases need to be referred
to this level for resolution.
Employees are actively encouraged to use
the open door system for issue resolution
and only escalate issues to the next stage if
they are unhappy with the outcome at the
previous level. While employees may skip a
level in the process, they are encouraged not
to do so if possible.
Embedding the process
The open door process is an integral part of
how Intel does business. An employee’s first
contact with the process is at “new
employee orientation” and through the
team member handbook. It is cross
referenced in a number of policies and
guidelines which are all available online on
Intel’s intranet. There is also a specific
section on the intranet which deals
exclusively with the process and how it
works. All people managers are expected to
know and understand the open door and
grievance resolution processes and are
expected to be able to coach and encourage
employees in their use.
People managers are expected to complete
various on-line and classroom training
programmes as part of their integration and
on-going development. These include
modules on effective listening, problem
resolution, attendance management,
performance management, etc. They can
also request training on a range of people
management topics by expert trainers from
a suite of learning forums which have been
created by HR and the training department.
In tandem with this they can receive
individual coaching as required from HR.
model has stood
“Our
the test of time and is
trusted and accepted
by both managers
and employees. We
review the model on
a regular basis to
ensure continuous
improvement.
”
Anne Kelleher,
HR Director
INTERNAL ADR
PRACTICES
and advised by separate members of the HR
team who will assist them for the duration
of the process including any referral on to
further stages. The issue will be investigated
by the line manager and again there will be
a serious attempt to resolve the matter. The
role of HR is to support and advise on the
process and to assist in clarifying the
issue(s) involved. They do not act in an
advocate role for either the line manager or
the employee as the model is predicated on
self-representation — HR will only attend
meetings if requested by the parties.
Metrics
The system is deemed to be so critical
that it is described as a measure of
“the pulse of the organisation” and is
regarded by the leadership team as one
of the key performance indicators for the
site. A number of system metrics are
maintained and reported on at regular
intervals, including:
k categories of issues raised;
k settlement rates;
k throughput time;
k rate of escalation through the four stages.
While the structure of the system may
appear relatively straightforward,
considerable resources and commitment are
required to maintain its effectiveness. It is a
highly successful model and has ensured
that Intel is able to resolve issues internally
without having a requirement for assistance
from third parties.
‘‘Our open door model provides for timely resolution of issues/concerns in tandem with
holding the mirror up to the organisation, creating awareness of what we need to do better.
In doing so, it promotes a positive ER environment which ultimately enables business success.’’
Jim O’Hara, Site General Manager, Intel Ireland.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
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“Ombudsman …The primary (or core) role of
office holders and their schemes is to look into
complaints in a proportionate and impartial
manner, and bring matters to a fair and
reasonable conclusion. In most cases,
complaints will have defied earlier resolution
by the organisation complained about.11 ”
11. The British and Irish
Ombudsman Association
(2003). Guide to principles
of good complaint
handling. London: The
British and Irish
Ombudsman Association.
http://www.bioa.org.uk/
docs/BIOAGoodComplaint
Handling.pdf
20
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SECTION FOUR
THE ORGANISATIONAL
OMBUDSMAN
Key features
k what to consider in
establishing the role of the
organisational ombudsman;
k case studies from Massachusetts
Institute of Technology
and the Ombudsman for the
Irish Defence Forces.
THE ORGANISATIONAL
OMBUDSMAN
In the past ten years there has been
increased interest in the role which an
ombudsman can play in problem solving and
the effective resolution of conflict at work.
The word ombudsman (meaning agent or
representative of the people) is Swedish in
origin and was used to describe a person,
who is independent of the executive, with
the responsibility of safeguarding the
rights of citizens via a supervisory agency.
Typically, it was a state official who was
appointed as ombudsman to provide a
check on government activity in the
interests of the citizen and to oversee the
investigation of complaints of improper
government activity against the citizen.
Ombudsman:
A designated neutral party … assigned
the role of assisting the resolution
of a grievance or conflict situation.
The activities of an ombudsman
may include fact-finding, providing
counselling and conciliation between
disputing parties (Teague 200512).
In Ireland the office of ombudsman is used
in a variety of circumstances to deal with
complaints from members of the public
arising from their dealings with various
organisations. Probably the best known is
the current Ombudsman, whose office
investigates complaints about the
administrative actions of government
departments, the HSE, local authorities and
An Post. In addition, there are a number of
ombudsman offices in Ireland in such areas
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
as financial services, pensions, children, the
press and an Garda Síochána. An ombuds
office has been specifically established to
deal with complaints by current and former
staff of the Defence Forces (see page 24).
A small number of non-union organisations
in the private sector have developed local
ombuds offices to deal with internal staff
issues. Some will avail of a corporate ombuds
facility on an occasional basis and there are
examples of organisations using external
third-party experts on a retained or ad hoc
basis. However, in overall terms, there
are limited examples of deployment of a
formal ombuds office for employees in
organisations in Ireland. The Appendix
provides an example of the terms of
reference for an ombudsman at an
international bank (see page 45).
12. Teague, P. (2005).
Towards flexible
workplace governance:
employment rights,
dispute resolution and
social partnership in
the Irish Republic. Studies
in Public Policy No 18.
Dublin: Trinity
College Dublin.
21
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In the US there is considerable use of
ombuds offices in corporations (e.g. CocaCola Enterprises and Polaroid), universities
(e.g. Massachusetts Institute of Technology
and Stanford University), government
agencies, health care providers, and schools,
with a well-developed professional
infrastructure to provide oversight and
guidance and to promote good standards
of practice. The greater incidence of ombuds
offices in the US can largely be explained
by the legislative impetus to establish ADR
mechanisms, the desire to avoid costly
litigation and the absence of public agencies
either at State or Federal level to investigate
and resolve workplace disputes.
The issues to be considered in the
establishment of an organisational
ombudsman are:
k stakeholder support, particularly among
members of the leadership team;
k whether the organisation is unionised
or not;
k location of the ombudsman within
the organisation’s conflict
management system;
k the specific objectives for the ombuds
function and how these fit within the
organisation’s value system;
k the reporting relationships and the
position of the office in the organisation’s
structure to maximise employee
perceptions of independence;
22
k what categories of personnel are
included/excluded;
k the scope of issues that can or cannot
be addressed;
k resources to carry out the functions
effectively and speedily;
k whether to appoint an internal staff
member or retain external expertise;
k the range of interventions to be
associated with the position — mediation,
investigation, adjudication or advice only
on the options for resolving an issue;
k role in applying, interpreting or
advising on organisational policy
in decision-making;
k protection of people and evidence;
k whether decisions made by the
ombudsman are binding or non-binding;
k maintaining confidentiality in all
dealings with people and in reporting
arrangements.
One of the key benefits of an ombuds office
is providing feedback and recommendations
to management on organisational policies
and practices. One of the weaknesses in the
model is that, in practice, it relies heavily
upon the qualities of the individual chosen
to undertake the role. It is a facility that can
work very effectively but in the wrong hands
can quickly fall into disrepute. Appointing a
person with proven credibility and expertise
is therefore essential. It is also important that
the role is clearly defined (see Appendix).
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CASE STUDY TWO
Massachusetts Institute of Technology
The Massachusetts Institute of
Technology (MIT) is a private university
near Boston with its own ombuds facility.
To function effectively, the MIT Ombuds Office and
staff maintain confidentiality of communications
with those who use the office. Communications
with the MIT Ombuds Office are therefore
considered confidential and privileged.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
THE ORGANISATIONAL
OMBUDSMAN
The MIT Ombuds Office helps people express
concerns, resolve disputes, manage conflicts and
learn more productive ways of communicating.
The MIT Ombuds Office welcomes all students,
faculty and other staff, but does not ordinarily
deal with any matter covered under a union-MIT
contract or special bye-laws. It provides
confidential, neutral, independent and informal
assistance to those who have concerns arising
from or affecting their work and studies at MIT.
It listens, offers information about policies and
procedures, helps people examine options for
resolving concerns, accepts suggestions and data
from individuals who seek a confidential channel
for raising legitimate concerns, and works for
orderly and responsible systemic change. MIT
ombuds are trained professionals and report to the
President.
Accordingly, MIT ombuds and staff do not answer
questions about people with whom they have
spoken, or disclose an individual’s name or specific
issue with anyone outside of the Ombuds Office,
unless they are given permission to do so. The only
exception to this pledge of confidentiality is where
the ombudsman determines that there is an
imminent risk of serious harm. The only
permanent records kept by the Office include
statistical information for analysing and reporting
trends and recommendations to the Institute.
MIT ombuds do not conduct formal investigations,
adjudicate, arbitrate, or serve as witnesses in
any administrative or legal proceedings either
at the Institute or elsewhere. As a matter of
policy, MIT does not call on ombuds to disclose
confidential communications or to serve as
witnesses. Since the Office is available to all
members of the MIT community as a purely
voluntary channel for communication, it is not
considered appropriate for anyone to seek to
compel the ombuds or their staff to disclose
confidential communication. Accordingly,
people who use the programme are considered
to have agreed to abide by these principles.
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CASE STUDY THREE
The Ombudsman for the Defence Forces
When the ombudsman receives a complaint, she
carries out a preliminary investigation to ensure
that the complainant was genuinely affected by
the action; the complaint is serious and is not
trivial or motivated by personal grudge; and that
no satisfactory measures have been taken to
resolve the issue.
The ombudsman has the power to:
The ombudsman for the Defence Forces was
established to ensure that members and former
members of the Permanent Defence Forces and
Reserve Defence Forces have a rigorous,
independent and fair appeal for complaints they
believe have not been adequately addressed by the
internal military complaints process. They have to
make a complaint within 12 months of an action
taking place, or becoming aware of it.
The ombudsman is impartial, independent of the
Minister for Defence, the Department of Defence
and the military authorities.
Serving members of the Permanent Defence Forces
and the Reserve Defence Forces must initially make
a complaint through the internal Defence Force
structures. If there is no resolution of the dispute
after 28 days, they are entitled to bring their
complaint to the ombudsman.
The ombudsman can investigate complaints about
actions taken by:
k another serving member of the Defence Forces
or the Permanent Reserve Defence Forces;
k a former member of the Defence Forces or the
Permanent Reserve Defence Forces who was
serving at the time of the action;
k a civil servant.
Complaints can be lodged in writing or through an
online facility and should include:
1. Personal details and how the person would
prefer to be contacted.
2. Information about the complaint:
k the action the person wishes to
complain about;
k the negative effect of the action;
k the date when the action took place;
k request any document or information she
decides is relevant to the investigation;
k inspect and take copies of any records she
decides are relevant to the investigation;
k require people who have relevant information to
appear before her;
k enter any military installation when conducting
an investigation.
The ombudsman must afford anyone who is the
subject of a complaint the opportunity to respond.
The only documents that the ombudsman for the
Defence Forces cannot access are confidential
government records or documents concerning
security or military operations.
The ombudsman appoints and directs investigation
officers who work under warrant and have the
same legal powers. When an investigation is
complete, the ombudsman sends her report to the
relevant parties in the investigation, including the
complainant, and to the Minister for Defence.
If the investigation finds that the complainant was
adversely affected by the action, the ombudsman
will make recommendations to the Minister for
Defence. The recommendations may set out
measures that should be taken to rectify the
situation, and these recommendations and the
Minister's response are provided to the complainant.
The Ombudsman Annual Report for 2006
summarises the level of activity in that year :
k 26 cases were deemed eligible for investigation;
k a final determination was issued in 16 of
these cases ;
k ten were upheld, two were partially upheld
and four were rejected;
k details of the internal complaint procedure
used, the outcome and why it is inadequate;
k nine related to non-selection for promotion,
eight to non-selection for career courses,
four to non-selection for overseas service
and five to “other issues”.
k any supporting documentation;
(Source www.odf.ie)
k person or persons responsible for the action;
k any other information.
24
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SECTION FIVE
NEGOTIATING COLLECTIVE
AGREEMENTS
Key features
k competitive negotiations versus
interest-based negotiations;
k preparing to negotiate a
collective agreement;
k the stages of a negotiation;
k case studies of RTÉ and the
Regional Printers and Newspapers
Association of Ireland.
NEGOTIATING
COLLECTIVE
AGREEMENTS
Collective agreements in unionised firms are
normally the outcome of a collective
bargaining process involving trade unions
and management and relate to both
substantive and procedural matters.
Substantive matters include pay levels,
overtime pay rates, employment conditions,
working hours, holiday entitlements and so
on. Procedural matters usually relate to rules
governing collective bargaining between
unions and management as well as other
policies and practices aimed at regulating the
employment relationship such as grievance
and disciplinary procedures. Efficient
bargaining systems are characterised by
prompt agreement, while failure in this
regard can result in stalemate or conflict.
A. Competitive or adversarial-based approach
Negotiating collective
agreements
Negotiations are at the centre of collective
bargaining and can be defined as any form
of direct or indirect dialogue between
employers and unions used to:
k determine the terms and conditions
under which people are employed by
the organisation;
k establish policies and practices to govern
internal employment relations;
k design any joint action between
management and trade unions.
Negotiations may be used to resolve an
existing problem or lay the groundwork for
future management-employee relationships.
Generally speaking, approaches to
negotiations can be divided into two
categories:
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
The competitive approach to negotiation assumes
that the interests of employers and employees are
different. As a result, little consideration is given to
the interests or demands of the opposing party as
these are simply regarded as a manifestation of
their self-interest. This approach is usually seen
as involving ‘hard’, sometimes confrontational,
bargaining. Frequently, it is criticised for its tendency
to promote brinkmanship and discourage mutual
trust between management and trade unions.
B. Interest-based or problem-solving approach
Interest-based bargaining encourages a more
cooperative approach to employment relations
negotiation. The emphasis is on following a set
of techniques and processes that will lead to
settlements that incorporate the interests of all
parties. The assumption is that management
and trade unions can work out their differences
through dialogue and mutual adjustment.
Collaboration and joint action are the bywords
of interest-based negotiations.
25
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Table 4 / Competitive negotiations versus interest-based negotiations
Competitive-based
k Establish targets in advance
k Overstate opening positions
k Mobilise support among constituents
k Appoint the key spokespeople
k Divide and conquer the other side
k Give as little as possible for what you get
k Always keep the other side off balance
k Never “bargain against yourself”
k Use coercive forms of power
where appropriate
k An agreement reluctantly accepted
is a sign of success
Interest-based
k Assess all stakeholder interests
in advance
k Convert positional demands from
constituents into interests
k Frame issues based on interests
k Avoid positional statements
k Use sub-committees and taskforces
for joint data collection and analysis
k Generate as many options as possible
on each issue
k Take on the constraints of
your counterparts
k Ensure constituents are educated and
knowledgeable on the issues
k Troubleshoot agreements
k An agreement fully supported by all
sides is a sign of success
Adopted from Cutcher-Gershenfeld 200313
Concerted effort is needed to promote the
principles and practices of interest-based
negotiations within organisations. In most
cases it requires a well thought out
programme that is implemented and
supported over a sustained period. An
important strategic consideration is whether
an interest-based approach to negotiations
can be developed solely within the collective
bargaining system or whether a new
additional institutional arrangement such as
an enterprise partnership is needed to
embed it properly within the organisation.
There is no single approach to addressing this
matter. Organisations must develop their
own customised ways of promoting and
adopting interest-based negotiations.
Competent negotiating teams carefully
prepare so that they are better able to cope
with all contingencies. Tactics adopted during
negotiations can range from pressure tactics,
deliberate ambiguity and intimidation to
blatantly unethical behaviour, and advance
preparation is essential in order to be able to
respond effectively. But, ultimately, the
response to difficult or unethical conduct is a
question of judgment at the specific time in
the particular situation.
26
Advance preparation
for negotiation:
(i) Initial assessment
The negotiation process begins with a
communication or signal from one party to
the other indicating a willingness to bargain.
Since negotiation is a voluntary process, the
first and fundamental step to be taken is to
confirm whether or not the other party or
parties is/are interested in negotiations. In
making such an assessment, it is important
to take account of
k the desire to resolve the dispute;
k whether a negotiated solution is
in the interests of any or all of the
parties in question;
k the credibility of the other parties;
k the desirability of using another dispute
resolution mechanism;
13. Cutcher-Gershenfeld, J.
(2003). “How process
matters: a five-phase
model for examining
interest-based
bargaining”, in Kochan, T.
and Lipsky, D. (eds)
Negotiation and change.
Ithaca, NY: Cornell
University Press.
k proper authority to enter into negotiations
and to reach an agreement or settlement.
(ii) Contacting the other party
Once it has been decided that negotiations
are an appropriate course of action,
arrangements must be made with the
other parties to
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k agree the outline agenda and the scope
of the negotiations;
k establish the timetable and whether or
not there will be a fixed period;
k determine the participants and ensure
that all interested parties are
consulted/considered.
k when and how to call a private
team caucus, e.g. when a new issue
emerges or an issue on the table
requires further analysis;
k that any disputes within the
negotiating team will be resolved
away from the negotiating table.
Consistency in these matters will not only
assist in ensuring the negotiations are as
effective as possible, but will also reinforce
credibility and help to establish mutual
confidence and trust.
The negotiation session
(iii) Preparation of a strategy
and interest assessment
k There is no need to wait until negotiations
have begun in order to develop options for
a settlement. These should form part of
the development of the negotiating
strategy, although they are subject to
modification in the course of the
negotiation. Creating these options
implies a willingness to look beyond the
limits of the issue(s) in question.
Prior to any bargaining session, the following
steps are necessary:
k Study the agenda in question. This means
not only obtaining the facts about the
issues, but also attempting to find out as
much as possible about the other party or
parties and their negotiating interests.
k When assessing the situation, the best
alternative to a negotiated agreement
(BATNA) must be taken into account. The
BATNA is the standard against which any
proposed agreement should be measured.
Devising this is indispensable and should
be done carefully and well in advance of
any bargaining session. Attempting to
estimate the BATNA of the other party is
an important step when planning
negotiation strategy.
k Creativity and flexibility is necessary when
devising solutions to difficult problems. An
impasse will often result when the
negotiating parties advance specific
positions and refuse to change them. Each
party should canvass the various members
of the negotiating team in order to obtain
their views regarding possible solutions.
k Agree how the negotiations will
be handled:
k whether there will be one spokesperson
or different team members will be
responsible for specific topics;
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
k The timing of any offer and the question
of which party makes the first offer has to
fall within the discretion of the negotiator
and will be determined by the overall
dynamic of a particular negotiation.
k Citing objective standards such as
legislation or government policies
enables the parties to view the issues in
rational rather than emotional terms and
facilitates the conclusion of an agreement.
If possible, such standards should be
identified before the negotiating session.
NEGOTIATING
COLLECTIVE
AGREEMENTS
k Harmonise and reconcile the varying
and sometimes competing interests
within one’s negotiating side before
negotiating with the other side. The
appearance of internal disagreement will
weaken a team’s negotiating stance and
raise doubts about the ability to
implement any agreement.
Each negotiation is unique. There is thus no
uniform and exclusive manner governing the
organisation of a bargaining session.
k Evaluate the proposals of the other party
and the progress of the negotiations in
light of the BATNA. It may become
necessary to break off the negotiations if
there appears to be no way of achieving an
outcome which is superior to the BATNA.
This can occur when it becomes apparent
that the underlying interests between the
parties are irreconcilable or that the other
side does not really want an agreement.
k When necessary, feel free to stop the
negotiations if there is a need for the
members of the negotiating team to
confer privately on a new development.
k Stay within the limits of one's negotiating
mandate. Ensure that there is
communication within your constituency
to minimise the risk of dissatisfaction.
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CASE STUDY FOUR
The Regional Printers and Newspapers
Association of Ireland (RPNAI) and
the National Union of Journalists
(NUJ) conciliation procedure
In practice, the agreement has been followed
in a flexible manner in terms of the numbers
involved at Stage 3. Typically there will be joint
chairpersons, normally the president of the
NUJ and a managing director from another
organisation in the sector. They are
supplemented by two to three employer
nominees and two to three union nominees.
It is important to note that the nominees
from the organisation where the dispute
exists are not placed on the panel.
Stage 1 recognises that “issues within an
office are proper matters to be discussed
between the chapel* and management”
i.e. at local company level.
Stage 2 states that in the event of the
matter remaining unresolved, the parties to
this agreement, i.e. an official from the NUJ
and the RPNAI “would attempt to
bring an amicable settlement of all
differences or disputes.”
Stage 3 sets out a novel procedure whereby
“a joint committee of five representatives, or
such lesser equal numbers as may be agreed
from each organisation, shall be formed to
discuss any question of difficulty arising out
of this agreement or any grievance which an
employee or group of employees may have.”
The agreement states that meetings are to
be convened within 14 days of either side
notifying the other of its desire to have a
meeting and the particular grounds on
which it is requested.
Finally, the agreement states that there
shall be no stoppage or threat of stoppage
without recourse to the disputes machinery
provided for in the agreement and that,
similarly, an employer shall not take any
prejudicial action in any matter that is
subject to examination under this clause.
28
trade unions and of
course employees
well over the past
two decades and
proven to be very
worthwhile with an
almost 100% success
rate. The reason for
this success rate is
that you are involving
people within the
industry to solve their
own problems
”
The process
In 1992 the RPNAI and NUJ concluded a
comprehensive agreement covering rates of
pay, hours of work and general working
conditions of journalists working in that
sector. One element of this agreement was a
conciliation procedure which set out a threestage process for resolving issues.
process has
“This
served employers,
The process is described by the parties as
“relatively informal”. The joint chairpersons
can agree the process in advance, depending
on the case before them. A meeting will be
convened in a neutral venue and the
company and union representatives from the
organisation will be requested to present
submissions to the committee. Where
written submissions are provided, these are
exchanged on the day and panel members
can ask questions of the parties. Following
the joint session, the parties will adjourn into
side conference format.
One of the key dynamics is the role that
experienced panel members play in
their interactions with the organisation
representatives. The peer dimension
(managing director to managing director
and union representative to union
representative) is an integral part of the
process and this ensures that advice,
guidance and suggestions are
communicated with credibility and in
a language that is likely to be more
readily received.
The output can take the form either of a
proposal which will be recommended for
acceptance by the parties or a record of an
agreement reached on the day.
Over the years the conciliation procedure
has been very successful in resolving disputes
of various types including both individual
and collective issues. The parties have had
very little recourse to the services of the
Labour Relations Commission and Labour
Court since 1992.
Neville R Galloway,
Chief Executive, RNPAI
the term
“Predating
social partnership this
model has stood the
test of time. The
leadership given by
the joint chairs has
been a feature of
meetings. The parties
are given the time
and space to make
their point in an
atmosphere of mutual
respect. It is surprising
how many apparently
intractable problems
are resolved by
informed discussion
within a collaborative
framework.
”
Séamus Dooley,
Irish Secretary, National
Union of Journalists
impact and
“The
effectiveness of the
peer dimension
cannot be overstated
… for the protagonists,
the panel carries a
weight and credibility
that, as a problemsolving intervention,
is hard to replicate.
”
Gavin Marie, Former
Divisional Director, IBEC
*Branch committees of the NUJ are called chapels
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holds the IRT in
“RTÉ
high regard. It has
CASE STUDY FIVE
RTÉ Industrial Relations Tribunal (IRT)
RTÉ is Ireland's public service broadcaster and
provides a comprehensive free-to-air
broadcasting service to the Irish public on
radio and television.
RTÉ is governed by the nine-member RTÉ
Authority which acts as the board, making
policy and guiding corporate direction. The
RTÉ executive board reports to the Authority
via the Director-General. RTÉ is organised
internally into six business divisions and a
corporate centre. Each business includes its
own support functions, including HR and
finance. RTÉ employs over 2,000 people, the
majority of whom work on a full-time basis.
The Industrial Relations Tribunal (IRT)
k a permanent independent chairman;
k a permanent RTÉ representative;
k a permanent trade union representative;
k a nominee from RTÉ;
k a nominee from the trade unions selected
to deal with specific issues.
Cases can be referred to the IRT jointly or by
either party. The permanent members of the
IRT will seek to resolve the matter via
conciliation/mediation, and if that is not
successful the case will be referred to a full
IRT hearing at which the two nominees join
the tribunal to hear the case. The parties are
expected to prepare formal submissions in
advance, typically not less than four days
before the oral hearing.
The IRT encourages disputes to be resolved as
close as possible to their origin. However, in
the event that a dispute is not resolved at
direct local level, then a well-defined and
agreed process is available to deal with
issues in a timely fashion.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
Number of cases
referred to the IRT
2007
2
2006
7
2005
12
2004
11
The key features of the IRT are set out in a
constitution and are summarised as follows:
k The chairperson shall be appointed
by agreement between RTÉ and the
trade unions.
”
RTÉ Management
k Issues concerning technology and work
practices, which are referred to the IRT,
shall be the subject of binding arbitration.
k Other industrial relations issues shall
be subject to a non-binding
recommendation except when both
parties agree otherwise.
k Individual appeals against grading
decision may be referred to the IRT for a
binding decision. Otherwise, single-person
issues should not be referred to the IRT as
these are best dealt with by the Rights
Commissioner Service of the Labour
Relations Commission.
k When submitting a case to the IRT,
each party should furnish a statement
of efforts made to resolve the matter at
local level.
k The IRT must be satisfied that meaningful
negotiations have taken place and may
refer matters back for such negotiations.
The IRT may also, in certain circumstances,
operate in a conciliation/mediation role.
k Having determined that the issue is
properly before it, the IRT will consider
written evidence from both sides followed
by oral evidence. Written evidence must
be submitted to the IRT not less than four
days before the oral hearing.
NEGOTIATING
COLLECTIVE
AGREEMENTS
The IRT was established in 1995 as a result of
a review of industrial relations in RTÉ,
spearheaded by the then director of the
Advisory Service of the Labour Relations
Commission. It consists of five people:
Year
provided a key service
in the area of dispute
resolution to the
organisation since its
inception. It has
contributed to a
period of industrial
peace due in no small
measure to its
knowledge of the
organisation and
ready availability.
It has steered the
parties through a
period of significant
change particularly
since 2000, and we
hope that it will
continue to do so.
Industrial
“The
Relations Tribunal
has made a very
significant
contribution to
improving the
industrial relations
climate in RTÉ. The
fact that both staff
and management
are involved in the
decision-making
process up to and
including the final
recommendation is a
major strength, as is
the fact that when
issues are under
review the staff and
management from
the area involved are
central to the
discussion and the
decision-making
process. Speed of
access is another
very valuable aspect
of the Tribunal.
”
RTÉ Trade Union Group
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k Where a majority recommendation is not
reached, the chairperson is authorised and
required to make a recommendation. All
recommendations are those of the IRT and
shall not be qualified by describing any of
them as a majority recommendation or as
a chairperson’s recommendation.
k Should either party find a binding
decision unsatisfactory (in respect of
technology and work practices) it will be
implemented on the basis that the IRT
will review the case after it has been in
operation for six months.
k Where any issue has been referred to the
IRT, no lock out or industrial action shall be
initiated while the matter is before it.
According to the IRT, since the convening of
monthly process meetings in 2003, there has
been a significant reduction in the number of
cases referred to it. These meetings give the
opportunity for key management and trade
unions representatives to tease out issues
with the help of the IRT members.
The parties are currently undertaking a
review of the workings of the IRT. It is the
consensus view that this review will
concentrate on how the operation of the IRT
could be improved rather than interfere with
the basic principles set out in its constitution.
The re-introduction of joint training for line
managers and shop stewards in taking cases
to the IRT is likely in 2008.
Among the key measurements of the success
of the IRT are the very low number of cases
that have been referred to the LRC and Labour
Court during this period and the capacity of
the organisation to introduce significant
change in a relatively seamless manner. There
are very few enduring examples of binding
internal forums in Ireland and the parties are
to be complimented for their ongoing
commitment to maintaining the system over
the past 16 years.
IRT is unique in
“The
the public sector in
that, under certain
circumstances, its
recommendations
are binding. While
the unions would
have concerns
regarding the binding
arbitration element
of the constitution,
we have, by and large,
been able to live with
the outcome. This will
continue only as long
as the unions, and
their members,
have confidence
in the continuing
independence of
the Tribunal.
”
RTÉ Trade Union Group
‘‘The fact that the composition of the Industrial Relations Tribunal within RTÉ consists of
members who have a deep and thorough understanding of the procedures and issues being
adjudicated on is, in my view, a great strength, as is the accessibility of the IRT at very short
notice to all parties, and the attendance of the IRT at the monthly process meetings.’’
Joseph P Walsh, IRT Chairman
30
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SECTION SIX
ARBITRATION IN COLLECTIVE
EMPLOYMENT DISPUTES
Where collective bargaining negotiations fail
to reach an agreement, the parties may use
binding arbitration to settle the matter.
Although the use of binding arbitration in
commercial disputes is commonplace, the
practice is not widespread in the
employment relations field. At present, when
collective industrial relations disputes cannot
be resolved through negotiations, the parties
normally refer their dispute to the
conciliation service of the Labour Relations
Commission, and, if unsuccessful, to the
Labour Court, which is intended to be a Court
of last resort. The recommendation of the
Court in these circumstances is non-binding,
although there is a strong informal norm
that parties should comply with it.
There is a limited number of examples of
arbitration in Ireland, which have been
agreed in different contexts. Each of these
situations is examined in turn with extracts
from actual agreements where available.
k binding arbitration as a feature
of the management-union
relationship on collective issues;
k examples of the use of arbitration
in different situations.
Arbitration as an option within
the normal IR procedures
While the agreement between the parties
typically provides for normal referral to the
Labour Relations Commission and Labour
Court, an alternative binding route can also
be used by agreement. The agreement
between ABB Transformers and Services,
Industrial, Professional and Technical Union
(SIPTU) incorporates two routes (see page 33).
Arbitration as the final stage in
normal IR procedures
Ad hoc arbitration as part of a
proposal to resolve a dispute
Two innovative agreements, involving
Waterford Crystal and Bausch & Lomb, include
arbitration as part of wider organisational
change initiatives. In both cases, the
arbitration option was time-bound, and in the
former it was extended for a second period
before ultimately being rejected by the
Amalgamated Transport and General Workers’
Union (ATGWU) (see page 33).
On occasions, when an employment dispute
is proving difficult to resolve, one or both
parties, or indeed, external interested parties
in some instances, may call for the issues in
dispute to be referred to an agreed individual
or a panel for arbitration. At times the
external arbitrator will be unable to settle
the dispute in one decision. As a result,
settlement terms can sometimes provide for
a particular issue or issues to be the subject
of a final adjudication by a third party after
an agreement to end industrial action.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
ARBITRATION
IN COLLECTIVE
EMPLOYMENT
DISPUTES
Examples of arbitration
Key features
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In dealing with non-statutory cases, it is
important to note that at any stage in
the processing of an individual or collective
issue it is open to the parties to agree to be
bound by the outcome of a Labour Court,
Rights Commissioner or other agreed third
party recommendation.
Arbitration to deal with disputes
regarding the implementation of
an agreement
This facility is used occasionally where a
significant change agreement is concluded
and the parties envisage that issues
may arise during the course of the
implementation of the agreement. It is
not unusual in these circumstances for the
person who facilitated the original
agreement to adjudicate on issues arising
from its implementation. Alternatively,
specialist expertise may be required to deal
with technical disputes or to verify that
certain changes have been fully implemented
to enable phased payments or other terms
to be approved for implementation.
Arbitration to deal with disputes
regarding the interpretation of
an agreement
This is a far more prevalent practice, where
disputes regarding interpretation can be
referred to the Labour Court or other
agreed third party. Probably the best
examples of this procedure are the
enforcement measures first agreed in
Sustaining Progress and enhanced in
Towards 2016.
The Towards 2016 agreement provides that
three of the four categories of dispute may
ultimately go to the Labour Court for a
binding recommendation under section 20
(2) of the Industrial Relations Act, 1969. The
categories cover the following scenarios:
32
(i)
where there is disagreement over what
constitutes “normal ongoing” change;
(ii) where a breach of the agreement
is claimed;
(iii) in a case involving a plea of “inability
to pay” the terms of the agreement.
Where it is claimed that cost-offsetting
measures are required to meet the pay terms
of the agreement, the Labour Court will issue
a non-binding recommendation and a three
week cooling off period will apply if either
party rejects the recommendation.
While it is acknowledged that
recommendations made by the Labour
Court under these measures are not legally
enforceable, the parties have voluntarily
agreed to be bound by the rules.
In Towards 2016 the role of the National
Implementation Body (NIB) was further
enhanced to oversee the entire enforcement
process. It meets once a month “to ensure
delivery of the stability and peace provisions
of the agreement,” and where “particular
difficulties” arise, it may be convened at short
notice. Furthermore, where particular
problems emerge, the NIB may make
recommendations to the social partners by
way of “further procedural changes”
necessary to ensure the effective delivery of
the “spirit and intent of the agreement”.
Overall, there are a number of circumstances
and organisations where binding arbitration
is a feature of the management-union
relationship on collective issues. Despite
reservations in some quarters, there appears
to be a greater willingness to agree to finality,
particularly for certain disputes that do not
involve significant issues of principle.
Concern about continuity of supply and the
desire to avoid costly disputes on all sides are
expected to lead to more binding arbitration
in the future.
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Waterford Crystal and ATGWU
Arbitration was first introduced into
Waterford Crystal’s industrial relations
procedures in 1993 as a result of a
Labour Court recommendation, which
proposed the following:
"Having regard to the critical position
of the business, the extent of the
present proposals which almost
constitute a green-field situation
and the inevitability of some teething
difficulties, the Court considers the
undertaking from both management
and union, as provided for in clause 3.3,
not to implement any form of industrial
action as both reasonable and prudent.
The Court recommends that the parties
should give such an undertaking but
that its duration should be for a period
of three years." (LCR 13911).
Bausch & Lomb and SIPTU, 2006
In 2006 Bausch & Lomb and SIPTU
agreed a three-year deal with the
assistance of the Labour Relations
Commission Advisory Service. The wideranging agreement includes a reward
for change mechanism and binding
arbitration facility to an appeals body.
The parties are required to exhaust a
number of internal steps in order to
resolve disputes, and if a dispute is not
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
The agreement does not prevent
the parties referring “ongoing change”
issues to the Labour Court under the
binding element in Towards 2016,
but it does involve the introduction
of arbitration into the company for
the first time.
ABB Transformers and SIPTU
A binding arbitration arrangement has
been in place at ABB Waterford since
1999. This procedure is part of a
partnership agreement that the
company entered into with SIPTU and
was introduced in order to deal with
disputes that have reached the end of
normal industrial relations channels
without agreement. Binding arbitration
is regarded as a means of preventing
disputes from becoming protracted. In
this way an element of finality has
been introduced into the company’s
industrial relations system.
The agreement itself provides two
routes to binding arbitration. The first is
to refer the dispute for a binding
recommendation by the Labour Court.
The second is to refer the dispute to an
external panel of “two active
practitioners, one who would be
nominated by the managing director
and the other nominated by the
regional secretary of SIPTU. The panel
would meet to investigate the issue
within a period of four weeks of referral
and would issue a determination
within a further four-week period,
which will be binding on both sides.”
ARBITRATION
IN COLLECTIVE
EMPLOYMENT
DISPUTES
The company and trade unions
concluded a collective agreement that
contained an arbitration clause on the
back of this recommendation. Under
the agreement, all issues which were
unresolved at local level could be
referred to the Labour Court for a
binding decision. In 1996, the parties
agreed to extend the duration of the
no-strike provision for a further three
years. When the agreement came up
for renewal in 1999, the trade unions
refused to sign its renewal despite a
Labour Court recommendation of a
further extension of the period of
arbitration. As a result, the arbitration
arrangement was discontinued.
resolved, then it can be referred to an
internal appeals body, comprised of a
jointly-appointed chair, and company
and SIPTU representatives.
It is important to note that the
agreement was introduced in the
context of a security of supply
agreement and as part of the
implementation of a wider profitsharing/gain-sharing scheme.
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Code of Practice – Dispute Procedures
including procedures in essential services
The Code of Practice on Dispute Procedures, including procedures in essential services (S.I. No. 1 of 1992) provides a
framework for the peaceful resolution of disputes, including disputes in essential services. It advises that agreements
on dispute procedures should be seen to be fair and equitable, include provision for the resolution of disputes on
collective and individual issues, and that procedures should be introduced where they currently do not exist.
It recommends that dispute procedures should be as comprehensive as possible, set out the consecutive stages for the
resolution of disputes, outline the appropriate level of management and trade union representation for each stage, be
in writing and communicated to employees and managers at all levels. The agreed procedures should give early access
to disputes resolution machinery and to arrangements for the settlement of issues within a reasonable timescale.
Essential services
In relation to emergency/minimum services, the code places a joint obligation on employers and trade unions to
agree contingency plans to deal with any emergency which may arise during an industrial dispute.
In relation to essential services, an agreement should provide for minimum cover where work stoppages “could have
serious and adverse consequences for the community or the undertaking concerned and its employees”. Essential
services include those where interruption would endanger life, cause major damage to the national economy or
widespread hardship to the community, particularly health services, energy services, including gas and electricity,
water and sewage services, fire, ambulance and rescue services, and certain elements of public transport.
In order to eliminate or reduce any risk to essential supplies and services, the code recommends that agreements
should include one of the following:
(a) a commitment by the parties to accept recommendations from the final stage of the dispute settlement
procedures where these include investigation by an independent expert body such as the Labour Court, an
agreed arbitration board, a tribunal or an independent person appointed by the parties;
(b) a specific undertaking that, in the event of one of the parties deciding that a recommendation emerging from
the final stage is unsatisfactory, they will agree on a means of resolving the issue without resort to strike or
other form of industrial action;
(c) provision that the parties accept awards, decisions or recommendations from the final stage of the dispute
procedure on the basis that an independent review would take place at five-yearly intervals to examine
whether the employees covered by the agreement had been placed at any disadvantage and advise on
changes needed to redress the position.
Whilst some progress has been made in adopting agreements and voluntary codes to resolve disputes in the area of
essential services, the evidence from recent high profile disputes in the Irish health and aviation sectors demonstrates
that the existence of the code has not completely eliminated the threat to essential services from industrial disputes.
34
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SECTION SEVEN
FACT FINDING AND
MEDIATION IN BULLYING
AND HARASSMENT AT WORK
Employers have a statutory duty to prevent
workplace bullying under the Health, Safety
and Welfare at Work Act, 2005. It is important
that employers develop comprehensive
procedures on this matter, as bullying and
harassment can have a devastating impact
on an individual and their immediate family.
This may involve physical, psychological and
behavioural effects which in some extreme
cases may even be life-threatening. The
organisation may also suffer in the form of
increased absenteeism, low morale, loss of
job satisfaction, reduced productivity,
negative publicity for the employer, and
diversion of management time and energy
to the resolution of cases.
What is workplace
bullying?
To satisfy the requirements of health and
safety and employment equality legislation
and for good employment practice,
employers should set out a dignity at work
policy, to be circulated to all employees as
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
k steps to prevent workplace
harassment and bullying;
k the mechanisms to deal with
disputes and complaints;
k the eircom workplace charter.
part of their contract of employment. Most
bullying and harassment policies will
k support the right of each employee
to work in an environment that is free
from harassment and bullying, and
respect the right of each individual to
dignity in their working life;
k treat incidents of bullying and harassment
as misconduct, to be dealt with under the
company’s disciplinary procedure with the
potential for disciplinary action up to and
including dismissal;
FACT FINDING
AND MEDIATION IN
BULLYING AND
HARASSMENT AT WORK
Bullying in the workplace was defined in
2001 by a government task force as “repeated
inappropriate behaviour, direct or indirect,
whether verbal, physical or otherwise,
conducted by one or more persons against
another or others, at the place of work and/or
in the course of employment, which could
reasonably be regarded as undermining the
individual's right to dignity at work. An
isolated incident of the behaviour described
in this definition may be an affront to dignity
at work but as a once-off incident is not
considered to be bullying."
Key features
k define the scope of the procedures i.e. who is covered by the policy;
k state that all employees have a duty to
create and maintain a positive work
environment where the right of each
individual to dignity at work is recognised
and protected, but also identify special
responsibility for those in leadership
positions including line managers and
staff representatives;
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k include personal and professional
behaviour while on company premises
and also in some circumstances outside
the company premises, e.g. engaged in
work, work-related activities (including
training, travel) or social events organised
by, or at the behest of, the company;
k define harassment and bullying, including
sexual harassment, with examples of
inappropriate behaviour;
k highlight the duty of a line manager to
supervise staff and to monitor their work
and assess their performance — normal
supervisory functions, which may include
justifiable and reasonable criticism of an
individual's work and performance
reviews, do not constitute bullying;
k support the rights of all employees to
make complaints when harassment or
bullying occurs and reassure staff that
their career/promotional prospects will not
be adversely affected as a result of making
a harassment or bullying complaint;
k set out the procedure for employees to
raise issues or concerns. This should involve
informal and formal options with
employees encouraged wherever possible
to use the informal procedure in the first
instance. The informal procedure will
typically encourage the employee to
initially try to deal with the matter directly
by informing the perpetrator that the
behaviour is unacceptable and unwelcome.
The formal procedure normally requires
the employee to make a written complaint
to their manager or other relevant person.
In either instance, support should be
available to all the parties, e.g. through a
designated contact person, manager, trade
union representative, health and safety
officer, HR, employee assistance
programme or confidential helpline;
k clarify that the alleged harasser will be
given full details of a formal complaint,
and will be given an opportunity to
respond. A suitable person should conduct
the fact finding investigation (see below)
and hold separate interviews with the
complainant and the alleged harasser;
36
k stress the importance of confidentiality to
all parties involved in the process;
k state that false or malicious complaints
will be treated as a disciplinary matter;
k allow for appropriate training for line
managers and designated contact
persons and actions to raise awareness
among all employees;
k set out an appeals procedure with a
timescale for appeals to be lodged.
Before initiating
an investigation
While fact finding is a very necessary step in
addressing alleged cases of harassment and
bullying and other workplace conflict issues,
it has limitations. In itself, it may not be
enough to deal with the perceptions and
emotions that are often involved in a
harassment and bullying case.
Fact-based investigations look back at events
and circumstances and do little to restore
normal working relationships where this is a
desirable outcome. Mediation, by contrast, is
more forward-looking and seeks to deal with
the perceptions and emotions that have
given rise to the allegations and attempts to
restore normal working relationships.
Choosing the correct form of intervention
can have a dramatic effect on the outcomes.
Any action must always be set in the context
of the organisational policy:
1. Focus on the informal procedure
Informal action, for example privately
bringing an issue to an individual’s
attention, should be the first step
wherever possible, and will often suffice.
In such cases, an apology together with
a promise not to repeat the behaviour
may solve the problem. It is important,
however, to follow up to ensure that the
matter remains resolved and that any
commitment is adhered to. A file note to
confirm the outcome is necessary to
record that the organisation took action
to deal with the issue at the time.
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2. Identify internal and/or external
points of contact and support for
both parties
A number of potential contact points can
be made available to employees. This can
reinforce the informal procedure, serve
as an early neutral evaluation point of
the merits of a problem and the options
available to the employee to resolve the
matter. It is also important to make these
facilities available to the person against
whom an allegation is made, as very often
the perception is that the complainant
receives the attention and support.
3. Use mediation whenever appropriate
Where circumstances permit, mediation
is preferable to an investigation and
has the greater opportunity to rebuild
relationships.
4. Consider mandating the investigator
to explore a mediated outcome prior
to an investigation
The terms of reference for an investigation
can allow for the possibility of a mediated
solution. The person undertaking an
investigation can explore the possibility of
resolving the issue through mediation
with the parties. While this approach may
not appeal to the purists, it has in practice
proved to be a very successful form of
intervention when conducted by the right
person in the appropriate circumstances.
Neutral fact finding
A formal, systematic approach to the
collection and processing of information will
help to build the strongest possible evidence
base for the settlement of the conflict.
Generally known as neutral fact-finding, this
process involves the use of a neutral third
party to investigate and determine the facts
relating to a dispute. Some companies use
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
Neutral fact finding can be used to try to
resolve disputes informally or as part of a
formal procedure. In relation to a grievance
over a managerial decision, it can be useful to
undertake an informal fact finding exercise
to show the employee the evidence as to why
a decision or action was taken. Informal fact
finding can also be used in a collective
bargaining process to determine facts and
other matters that are disputed.
The neutral fact finding process can be an
optional or mandatory part of a formal
dispute resolution procedure. An increasing
number of organisations are including a
mandatory fact finding process in their
formal procedures to deal with harassment
and bullying complaints. This obliges the HR
department to automatically initiate such a
process once a complaint has been received.
A fact finding process normally begins with a
HR or other manager communicating its
initiation to the relevant parties, along
with the name of the proposed neutral third
party who is to conduct the investigation.
It is preferable that the investigator’s
appointment is agreed on by all concerned.
The parties need to be informed of the terms
of reference of the investigation and
reassured that the report will remain
confidential. They should also be directed to
provide the investigator with all relevant
information and to retain confidentiality.
Information is collated initially through
examination of all relevant documentation.
Then separate meetings are held with the
complainant and alleged harasser to
understand the facts, obtain an appreciation
of the contrasting perspectives and to identify
potential witnesses. These are followed by
further interviews with relevant personnel
and witnesses to establish as much
information as possible. Individuals should be
informed of their right to bring a colleague or
representative to these meetings.
FACT FINDING
AND MEDIATION IN
BULLYING AND
HARASSMENT AT WORK
The issue of harassment and bullying
highlights the growing importance of
collecting and processing information and
evidence in the resolution of any workplace
dispute. Determining the facts relating to
disputes will of course be more
straightforward in some cases than in others.
internal personnel for this, but to ensure
impartiality it is usually conducted by an
external person. This process usually comes
into play when the facts relating to the
dispute are strongly contested, when the
nature of the dispute is sensitive or serious,
or when significant factual issues are part of
a larger dispute.
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In this context, good interviewing skills are
important and table 5 sets out the practices
that a fact finder should follow when
gathering information.
Once this phase has been completed, a
confidential report is compiled. Normally
the investigator writes a detailed, confidential
report on the case and presents it to the head
of HR or other senior manager. The
investigator reports on the facts as
determined, and then the HR or
management team uses the report’s
findings to determine whether sufficient
grounds exist to initiate disciplinary
proceedings or whether alternative action
can be taken to settle the dispute.
Table 5 / The fact finding interviewing process
k Obtain permission from management for the interview.
k Allow the interviewee time to prepare.
k Use a quiet room, although if the interviewee's workplace is suitable, this is
often advantageous.
k Prepare for the interview: compile a list of topics to be covered, look at
all relevant documentation.
k Be considerate of the duties and responsibilities of the interviewee.
k Open with an introduction to the aims and background of the investigation.
k Reinforce their right to representation and the need for confidentiality.
k Ask focused questions for details and facts.
k Ask open-ended questions to obtain attitudes and opinions.
k Avoid committing to any opinions or promising solutions.
k Listen more than talk, yet say enough to keep the discussion going.
k Remain impartial, avoid taking sides.
k Do not engage in exchanges of personal opinions or arguments with interviewees.
k Do not attempt to cover too much ground in one interview.
k Test understanding with interviewees, reflect back what you think their position is.
k Investigate potential solutions.
k At the end of the interview, summarise the facts that you have gathered.
‘‘Mediation should be the first, and litigation the last, resort. Litigation is bounty for the lawyer,
but too often fatal for the client. The costs are exorbitant and there is no assurance that the
outcome will reflect the merits of the dispute, let alone the confident advice of legal advisers.’’
Mr. Justice Lightman, Chancery division of the Administrative Court, UK, (2003).
In Court referred ADR: A guide for the judiciary. London: CEDR.
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CASE STUDY SIX
The eircom workplace charter
The eircom workplace charter was designed following
a review of the company’s policy and procedure for
dealing with allegations of bullying and/or
harassment. This was carried out on a partnership
basis and agreed with employee representatives.
Sources of information/assistance
Given the often personal nature of bullying or
harassment, the recipient or the alleged harasser may
need to discuss their concerns in total confidence with
someone else in a safe environment. Consequently,
eircom has trained a group of “contact people” who
can be contacted directly at any stage for support
and guidance throughout the process and a list of
the contact people is published on the internal
HR intranet site.
Employees who believe that they are being or have
been bullied or harassed, or that an allegation has
been made against them, can seek information in
strictest confidence from any of the following people:
k line manager
k business area line support
Informal approach
If an employee finds it difficult or embarrassing to
communicate directly with the alleged offender,
he/she may request their manager, another
manager, a nominated trade union representative
or a colleague to speak to the alleged offender on
his/her behalf. The assistance of the contact person
is available to all employees in this regard. In such
cases, the manager is advised to keep a diary record
of the request and of any action taken.
Mediation
In certain instances, the HR Line Support Manager or
other senior relevant manager may at the outset
offer the option of mediation to the parties involved.
Alternatively, an employee may choose to seek
mediation as a method of resolving the issues. The
final decision in relation to invoking the mediation
process rests with the Head of HR Line Support. The
process is voluntary and either party may terminate
it at any stage. The objective of the mediation process
is to provide an alternative dispute resolution process
to that of investigation process.
Formal approach
If a complainant wishes to make a formal
complaint, they need to present a signed and dated
complaint in writing giving the following details, as
far as possible:
k trade union representative
k dates and times of incident(s);
k contact person.
k names of witness(es), if any;
Line managers are specifically encouraged not to
k factual description of incident(s);
k assume that “no complaints” means “no problems”;
k direct quotes, if they can be recalled;
k try to dissuade people from making complaints;
k a brief description of the context of each incident;
k assume that the complainants are over-sensitive
or are trouble makers;
k any other documentary evidence;
k accept “I didn’t mean any harm” as an excuse
for harassment;
k allow retaliation or victimisation.
The charter sets out three approaches to dealing with
bullying and harassment — one informal, one formal,
and a third option of mediation is available where
appropriate. While it is preferable that complaints are
settled informally, if the informal approach or
mediation is inappropriate or has not worked, in that
the offensive behaviour has continued, the charter
states that a formal complaint should be made.
Ultimately, the complainant decides which approach
to request in any particular situation.
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
k details, if any, of how the complainant has shown
the behaviour complained of to be unwelcome;
k all written complaints should be forwarded
immediately to the Area HR Manager
for investigation.
FACT FINDING
AND MEDIATION IN
BULLYING AND
HARASSMENT AT WORK
k work colleague
k clear, specific allegations against named
individual(s);
Guidance for managers on the charter states that it
is incumbent on the local manager to monitor the
outcome of the complaint process, regardless of
which approach was used. This means that the
behaviour of the interested parties needs to be kept
under review so as to ensure that any agreement
reached informally or imposed as a result of an
investigation is adhered to appropriately.
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Figure 4 summarises the range of options for
dealing with bullying and harassment
allegations. Any manager who has been
involved in dealing with a case will testify to
the enormous amount of time, energy and
emotion that is required on all sides to
resolve it satisfactorily. Developing an
effective policy that delivers zero tolerance of
bullying and harassment, coupled with
effective training of managers and staff can
be extremely helpful in creating a positive
working environment that will reduce the
likelihood of a case arising in the first
instance. The informal procedure should be
used where possible, contact persons should
be available to discuss cases informally but
confidentially and difficult conversations can
be facilitated by a manager if required.
Finally, mediation should be encouraged in
preference to a fact-based investigation,
particularly where the parties can be
encouraged to use it on a voluntary basis.
Figure 4 / Options for the resolution of bullying and harassment cases15
BULLYING AND
HARRASSMENT PROBLEM
SURFACES
Internal contact
persons available
Use informal
procedure for
resolution if possible
Case resolved
Formal
investigation
Monitor/review
after agreed period
Formal procedure
(internal or
external actors)
Mediation
Consider early
neutral evaluation
of case
Recommend
mediation
Recommend
investigation
15. Doherty, L. and Teague, P.
(2007). Protocol to
govern the conduct of
independent
investigation, mediation
and arbitration in
employment disputes in
Ireland. IRN, Apr 2007.
Recommend
informal option
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SECTION EIGHT
THE FUTURE OF ADR
This guide outlines the various aspects of
ADR and its overall importance and value to
employers in Ireland today. ADR enables
organisations to act with integrity to solve
workplace problems and disputes quickly and
fairly. ADR is about organisations choosing
from a menu of options and behaving
responsibly to address workplace conflict
effectively. The values underpinning ADR are
consensus-building and collaboration when
stakeholders have different interests.
Key features
k the growing use of ADR practices;
k the deepening of the concept
of ADR.
Recourse to ADR is likely
to increase
A number of factors are likely to result in ADR
practices being increasingly used to prevent
and resolve workplace conflict. At the level of
the labour market, these include
k The decline in unionised organisations
The proportion of the labour force
belonging to a trade union has declined
quite significantly during the past two
decades. As a result, the number of
non-unionised organisations is on the
rise. In building conflict management
procedures these organisations are likely
to use ADR principles and practices.
k The rise in knowledge-based
The recruitment and retention of
knowledge workers has become a top
priority for many organisations. To this
end, there is a requirement to create an
employment brand that attracts the best
talent, just as a consumer brand builds
customer loyalty. An employment brand
will be created by the management and
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
Knowledge workers expect, and all workers
deserve, systematic, state-of-the-art
procedures to be used to address their
concerns at work.
k Organisational change
We live in a business world that demands
continuous organisational change both
in the public and private sectors. But
any form of change represents a
big challenge for organisations and
individuals. The risk of workplace conflict
increases substantially in the context of
organisational change. If such conflict is
not addressed properly an organisation
may find that its change programme fails
to reach maximum potential, and may
even be blown off course completely. Thus,
pressures are emerging from the business
environment for organisations to upgrade
their conflict management strategies.
THE FUTURE OF ADR
employment
HR practices adopted by the organisation.
These are increasingly likely to include a
range of conflict management procedures.
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Within organisations, the growth and
spread of ADR is the result of a number of
factors, including
k greater employee preference for dispute
resolution mechanisms that are individual
focused and confidential;
k the diffusion of people management
policies based on progressive employment
relations strategies which include conflict
management procedures;
k growing efforts by employers to improve
internal conflict management systems to
avoid disputes going to public dispute
resolution bodies.
The deepening of ADR
ADR is still relatively young and although it
already covers quite a wide range of conflict
management procedures, the concept will
continue to evolve. ADR policies and practices
will strengthen workplace conflict
management systems in a number of ways:
k the rules of decision-making and
procedure will be pre-fixed and preannounced, thus removing arbitrariness
from the conflict management system;
k the rules are more likely to be, and
perceived to be, fair and equitable;
k the rules can be transparent and
consistently applied;
k the process will enable workplace
disputes to be addressed in a quick
and timely fashion to the mutual
satisfaction of the parties.
In the future, ADR will not solely involve
making interventions to resolve conflict;
it will also involve analysis of the underlying
causes of conflict to assess if individual
problems are rooted in organisational failures.
In this scenario, ADR focuses on active
problem-solving, involving the diagnoses of
organisational systems and routines in order
to both correct recurring problems and to
prevent future workplace conflict. ADR will
build bridges between the resolution of
individual cases and the development of
organisational policies and practices.
The established methods of managing the
employment relationship have to be
constantly realigned with the dynamics
of modern organisations and the expectations
of employees. ADR policies and practices will
differ across organisations as each has a
different history and culture, and faces
different challenges. There is no one ‘bestpractice’ ADR conflict management system.
However, appropriately designed ADR
practices ensure that workplace conflict does
not stand in the way of either the organisation
or its employees reaching their full potential.
‘‘One of the rarest managerial skills is the
ability to understand which tools will work in a given
situation – and not to waste energy or risk credibility
using tools that won’t.16’’
42
16.Christensen, C. M., Marx,
M. and Stevenson, H. H.
(2006). The tools of
cooperation and change,
Harvard Business Review,
2006, 84, pp73-80.
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SECTION NINE
RESOURCES
Blancero, D. (1995). “Non-union grievance systems: systems characteristics and fairness perceptions”,
Academy of Management Best Papers Proceedings, 1995, 84-8.
Boxall, P. and Purcell, J. (2003). Strategy and human resource management. Basingstoke: Palgrave Macmillan.
Budd, J. and Colvin, A. (2005). Balancing efficiency, equity, and voice in workplace resolution
procedures (Working Paper 1050). Minneapolis: Industrial Relations Centre, University of Minnesota.
Bush, R. and Folger, J. (1994). The promise of mediation: responding to conflict through empowerment and recognition.
San Francisco: Jossey-Bass Publishers.
Cutcher-Gershenfeld, J. (2001). “In whose interest? A first look at national survey data on interest-based bargaining in
labor relations”, Industrial Relations, 2001, 40 (1) pp3-20.
Cutcher-Gershenfeld, J. (2003). “How process matters: a five-phase model for examining interest-based bargaining”,
in Kochan, T. and Lipsky, D. (eds) Negotiation and change. Ithaca, NY: Cornell University Press.
Doyle, M. (2000). Advising on ADR: the essential guide to appropriate dispute resolution. London: Advice Services Alliance.
Dunlop, J. and Zack, A. (1997). Mediation and arbitration in employment disputes. Toronto: John Wiley & Sons.
Edwards, P. (1992). “Industrial conflict: themes and issues in recent research”, British Journal of Industrial Relations,
30 (2), pp361-404.
Fernie, S., and Metcalf, D. (2004). “The organisational ombuds: implications for voice, conflict resolution and fairness at work”
in Lewin, D. and Kaufman, B. (eds), Advances in Industrial and Labor Relations 13, pp97-138.
Feuille, P. and Chachere, D. (1995). “Looking fair or being fair: remedial voice procedures in non-union workplaces”,
Journal of Management, 1995, 21 (1), pp27-43.
Feuille, P. and Hildebrand, R. (1995). “Grievance procedures and dispute resolution”, in Ferris, G., Rosen, S. and Barnum, D. (eds),
Handbook of Human Resource Management, Oxford: Blackwell.
Folger, R. and Cropanzino, R. (1998). Organisational justice and human resource management. London: Sage Publications.
IBEC (2007). Human Resources Management Guide. Dublin: IBEC.
Lewin, D. (1987). “Dispute resolution in the non-union firm: a theoretical and empirical analysis”, Journal of Conflict Resolution,
1987, 31 (3), pp453-469.
Lewin, D. (2001). “IR and HR perspectives on workplace conflict: what can each learn from the other?” Human Resource
Management Review, 2001, 11 (4), pp453-485.
McCabe, D. M. (1988). Corporate non-union complaint procedures and systems. New York: Praeger.
Rowe, M. (1993). “The corporate ombudsman: an overview and analysis”, in Breslin, J. and Rubin, J.
(eds), Negotiation theory and practice. Cambridge, MA: Harvard Program on Negotiation Books.
RESOURCES
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Rowe, M. (1997). “Dispute resolution in the non-union environment”, in Gleason, S. (ed), Frontiers in Dispute Resolution
in Labor Relations and Human Resources. East Lansing, MI: Michigan State University Press.
Sheppard B. H., Lewicki, R. J., and Minton, J. W. (1992). Organisational justice: the search for fairness in the workplace.
New York: Lexington Books.
Stone, K. (1999). “Employment arbitration under the Federal Arbitration Act”, in Eaton, Adrienne E. and Keefe,
Jeffrey H. (eds), Employment dispute resolution and worker rights in the changing workplace. Madison, WI: Industrial
Relations Research Association.
Susskind, L., McKearnan, S. and Thomas-Larmer, J. (1999). The consensus building handbook. Thousand Oaks, CA: Sage.
Visser, J. (2006). “Trade union membership statistics in 24 countries”, Monthly Labor Review, 2006,129 (1).
Weston, A. and Feliu, A. (1998). Resolving employment disputes without litigation. Washington, D.C.: Bureau of National Affairs.
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APPENDIX
Terms of reference of the ombudsman at an international bank
1.
Introduction
The ombudsman is an independent person whose function is to act as an impartial mediator in the
resolution, by mutual agreement, of cases of employment-related grievance or conflict.
All current staff members, including fixed-term and part time employees of the Bank, shall have access
to the ombudsman.
2. Functional relationships
The ombudsman shall be appointed by the president after consultation with the staff council for a term
not exceeding three (3) years. In the exercise of their duties, the ombudsman shall be independent of any
department or official of the Bank. The ombudsman shall have direct access to the president and vicepresidents and to all staff members of the Bank.
3. Ombudsman functions
3.1 The ombudsman shall consider staff members' inquiries or complaints of any nature related to
their employment with the Bank. The scope of such inquiries or complaints shall be broadly interpreted
and shall include matters pertaining to the administration of benefits as well as professional and staff
relations matters.
3.2 The ombudsman shall, in the exercise of their judgement, facilitate resolution of disputes, by means of
mediation and conciliation or any other appropriate method, with the primary objective of settling
grievances or disagreements and resolving problems between staff members and management.
3.3 All matters brought to the ombudsman shall be considered solely on the merits of the case. The
ombudsman may make specific suggestions or recommendations, as appropriate, to both staff members
and management on action needed to settle grievances. The recommendations of the ombudsman shall
not create precedent for any subsequent cases, although the ombudsman may have regard to previous
recommendations when considering current inquiries or complaints.
3.4 The ombudsman may also investigate matters brought to their attention in a confidential manner by
staff members and, if satisfied that remedial action should be taken, may make specific suggestions and
recommendations, as appropriate. In cases which relate to a specific individual, the ombudsman will only
investigate the matter if given the express permission of the staff member concerned. In cases which
relate to more general matters affecting a group of staff members, the ombudsman may investigate
such matters brought to their attention without the express permission of the referring staff member.
However, in such cases the anonymity of that staff member will be maintained unless and until the latter
has given express consent to be named by the ombudsman.
3.5 At all times the ombudsman shall take into account the rights and obligations existing between the
Bank and the staff member, in addition to the equity of the situation.
3.6 The ombudsman shall not have decision-making powers but shall advise and make recommendations.
RESOURCES
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3.7 The ombudsman may, at their discretion, decline to consider matters that can be remedied only by action
affecting Bank staff as a whole or a whole class of Bank staff. The ombudsman may also, at their discretion,
decline to consider matters that they deem not to have been brought to their attention in a timely manner.
3.8 Upon request of the chairman of the appeals committee, the ombudsman may also, at their discretion,
mediate between parties to an appeal when they have been so referred.
4. Access to documents and confidentiality
4.1 The ombudsman shall have unrestricted direct access to any personnel or other Bank files, including
reports of the appeals committee, which they believe to be relevant to the discharge of the functions
of their office.
4.2 The ombudsman shall respect the confidentiality of all information and documentation made available
to them. Neither the ombudsman nor any document in their possession may be produced as evidence
in any Bank proceedings, including those of the appeals committee, unless agreed by all parties.
4.3 On the initiative of the appeals committee or at the request of a party to appeals committee
proceedings, and with the consent of the parties and the ombudsman, the ombudsman may be invited
to appear before the appeals committee or provide documentary evidence to it. The ombudsman may
not be compelled to disclose the identity of staff members by whom they have been consulted, nor shall
the ombudsman disclose the details of matters they have considered without the express permission
of the staff members involved. All reports of the appeals committee shall be sent to the ombudsman
unless the appellant objects.
5. Other recourse for staff complaints
5.1 The above provisions shall not be construed as in any way limiting staff members' access to any other
recourse for the resolution of claims or grievances.
5.2 The time spent in consulting with the ombudsman and the time employed by the latter in the performance
of their functions on behalf of a staff member shall in no way affect the time limits for formal presentation
of a claim or grievance to management or to the appeals committee. In appropriate cases, however, the
ombudsman may request the chairman of the appeals committee to consider exercising their discretion to
extend the normal time limit for filing an appeal in accordance with the applicable rules.
6. Reports
Subject always to the provisions of paragraph 4.2 above, the ombudsman shall provide semi-annual reports
to the president, the vice president, personnel and administration and the staff council. These reports shall be
of a non-specific nature and will provide an overview of the ombudsman's activities, together with any
comments on Bank policies, procedures and practices that may have come to their attention.
7. Assistance with policy improvements
As a result of their experience in the exercise of the function, the ombudsman may be consulted by
management on policy issues where their views and experience might prove helpful.
8. Review of the terms of reference and performance of the ombudsman
These terms of reference shall be subject to review by the vice president, personnel and administration in
consultation with the staff council and, as necessary, with the ombudsman. The performance of the ombudsman
in fulfilment of these terms of reference during their term of office will be subject to periodic review by the
president, in consultation with the vice president, personnel and administration and the staff council.
46
THE ESSENTIAL GUIDE TO ALTERNATIVE DISPUTE RESOLUTION
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